Harris v. State

• Decision Date: 26 June 1919
• Docket Number: 3 Div. 381
• Citation: 82 So. 450,203 Ala. 200
• Parties: HARRIS v. STATE.
• Court: Alabama Supreme Court

82 So. 450

203 Ala. 200

HARRIS v. STATE.

3 Div. 381

Supreme Court of Alabama

June 26, 1919

Appeal from Circuit Court, Autauga County; Leon McCord, Judge.

Fred Harris was convicted of murder in the first degree, and appeals. Affirmed.

P.E Alexander and Gipson & Booth, all of Prattville, for appellant.

J.Q Smith, Atty. Gen., and Horace C. Wilkinson, Asst. Atty. Gen for the State.

THOMAS J.

Appellant was convicted of murder in the first degree, and the death penalty was imposed.

The entire record has been examined pursuant to the statutes made and provided for such cases.

The minute entry shows that on December 28, 1918, the "judge of the Fifthteenth judicial circuit in said state, in vacation, drew from the jury box of said county" the names of 52 persons, to serve as "petit jurors for the second, or criminal week of this term of this court," though the term recited in the caption of such minute entry is "Fall Term, December 28, 1918." The minute entry is self-corrective, in reciting that the jury was drawn in vacation on the date recited. Clinton Min. Co. v Bradford, 76 So. 74, 77, 78. On January 6, 1919, defendant was indicted, arraigned, pleaded not guilty, and a day was set for his trial (January 9, 1919). Order for a special venire, drawing the same, order for service of copy of venire and of the indictment forthwith to be served upon the defendant by the sheriff of said county, are each shown by the record.

On the day set for his trial, defendant, in his own proper person and by attorney, moved the court to quash the venire, and to the overruling of which motion exception was duly reserved. The motion to quash was on the grounds, among others:

"That the venire served upon this defendant, Fred Harris, is null and void, because the jury was drawn at a time when the court of the Fifteenth judicial circuit was not in session."

"That the copy of the venire served on the defendant, Fred Harris, was not a true and correct copy of the list of the petit jurors and special jurors drawn for this week and to try this case, and that

it is not a true and correct copy of the names of the men summoned to be here to serve on this day on the jury to try this case, we have here on the list of the defendant served on him the name of W. Zimmerman Love while on the original is the name of W. Zimmerman, we do not know which is the man."

In overruling the motion, the court ordered the venire to be amended and a copy of the amended venire to be forthwith served upon the defendant. Thereupon the venire was amended and a copy thereof forthwith served upon both the defendant and his counsel, to which action of the court the defendant excepted. Thereupon the defendant refiled his motion to quash the venire and set out as another ground to quash the venire, as amended and served on defendant, that-- "*** The list of the jury summoned to try this case, State v. Fred Harris, was not served upon this defendant forthwith as prescribed by law, and the defendant now prays the court to quash said venire."

This motion was overruled by the court, to which action of the court the defendant excepted.

The jury law declares that its provisions in relation to the selection, drawing, summoning, or impaneling of jurors are "directory merely and not mandatory," and that "no objection can be taken to any venire of jurors except for fraud in drawing or summoning the jurors." Gen.Acts.1909, p. 317, § 29; Parris v. State, 175 Ala. 1, 6, 57 So. 857; Zininam v. State, 186 Ala. 9, 13, 65 So. 56; Tennison v. State, 188 Ala. 90, 98, 66 So. 112; Autrey v. State, 190 Ala. 10, 12, 67 So. 237; Morris v. State, 193 Ala. 1, 7, 68 So. 1003. There was no error committed in the order of the court amending the name of the juror appearing on the venire, W. Zimmerman, to that of W. Zimmerman Love, on the copy of the venire served on defendant, to conform to the true facts of the drawing, summoning, and attendance on the court at said trial by said jury; no fraud in the drawing or summoning of the jurors or juror in question being disclosed by this record. Knott v. State, 80 South, 442. The failure of the sheriff to serve a copy of the venire on the defendant forthwith pursuant to the first order therefor was no ground to quash the venire. Savage v. State, 174 Ala. 94, 57 So. 469. As to the proper procedure to invoke the power and jurisdiction of the court to enforce rights by an objection to being put on trial without compliance with the statute "pointing out to the court in such objection wherein there has been a failure to comply with the statute," see Carmack v. State, 191 Ala. 1, 67 So. 989; Tennison v. State, supra; Zininam v. State, supra; Cain v. State, (App.) 77 So. 453, 455, 456.

There was no error in allowing Tempie Harris, the wife of the defendant, to testify to the res gestae of the homicide; that when she cried out defendant attacked her in such wise that it became relevant as tending to show defendant's intent. McDonald v. State, 83 Ala. 46, 3 So. 305; Gassenheimer v. State, 52 Ala. 313; Ingram v State, 39 Ala. 247, 84 Am.Dec....