Harris v. State

• Decision Date: 06 June 1912
• Citation: 59 So. 205,177 Ala. 17
• Parties: HARRIS ET AL. v. STATE.
• Court: Alabama Supreme Court

59 So. 205

177 Ala. 17

HARRIS ET AL. v. STATE.

Supreme Court of Alabama

June 6, 1912

Appeal from Law and Equity Court, Walker County; T. L. Sowell Judge.

Frank Harris and Will Jones were convicted of murder, and they appeal. Affirmed.

The facts sufficiently appear from the opinion. The judgment entry recites that "on December 11, 1911, came the solicitor, who prosecutes for the state, and the defendants each in his own proper person and by attorney. [Here follow certain motions for a severance, to quash the venire, etc all of which were overruled.] And on December 13, 1911, issue having been joined upon defendant's plea of not guilty came a jury of good and lawful men, to wit: [Here follow the verdict, etc.]. And on the same day" it is recited that "thereupon defendants, and each of them, being present in open court, and being asked if either of them had anything to say why the sentence of the law should not now be pronounced," etc., followed by the judgment of the court.

The following charges were refused to the defendant: (4) Set out in the opinion. (10) "The court charges the jury that the state must prove beyond a reasonable doubt that a conspiracy existed between Will Jones and Frank Harris to take the life of John Bailey, before Will Jones could be convicted in this case in either degree of murder." (13) "The court charges that, unless you believe beyond all reasonable doubt and to a moral certainty that Will Jones and Frank Harris agreed and conspired to take the life of John Bailey, then you cannot convict Will Jones of either degree of murder or manslaughter." (14) "The court charges the jury that a probability that there was no conspiracy between these defendants to take the life of said Bailey, this is sufficient to raise a reasonable doubt as to the conspiracy, and you should acquit Will Jones."

Powell, Finch & Peebles, for appellants.

R. C. Brickell, Atty. Gen. and W. L. Martin, Asst. Atty. Gen., for the State.

DOWDELL C.J.

In examining the jurors touching their qualifications, the court, among other things, asked each of them if he was upon the grand jury which found the indictment, which question was uniformly answered in the negative. After the jurors had been qualified, and a jury of 12 selected and impaneled in accordance with the statute, and after the jury thus selected had been sworn and the indictment read to them, one of the jurors so impaneled stated to the court that, after seeing the defendants and his memory being refreshed, he was on the grand jury that found the indictment; whereupon the defendants challenged said juror for cause. The court overruled the said challenge and declared him a competent juror, and also overruled defendant's objection to going to trial with the jury so impaneled, to which the defendants excepted.

That a juror served on the grand jury finding the indictment is good ground for challenge for cause when seasonably made. Birdsong's Case, 47 Ala. 68; Finch's Case, 81 Ala. 41, 1 So. 565.

Such challenge for cause may be made at any time before the jury is sworn, but after a juror has been impaneled and sworn to try the issue he cannot be challenged or excused except by consent, or for a cause originating since he was sworn. The administration of the oath is the commencement of the trial--the submission of the issue to the jury. Spigener v. State, 62 Ala. 383; Roberts v. State, 68 Ala. 515; Mooring v. State, 129 Ala. 66, 29 So. 664; Smith v. State, 55 Ala. 1; Henry v. State, 77 Ala. 75. "Until the cause is opened, or put to the jury, which may be considered usually as done when the jury is sworn, it is within the discretion of the court to permit an inadvertent acceptance of a juror to be withdrawn." Daniels v. State, 88 Ala. 220, 7 So. 337; Murray v. State, 48 Ala. 675; Henry v. State, 77 Ala. 75. The challenge in this case came too late, and the court below committed no error in disregarding it.

The defendants, Frank Harris and Will Jones, were jointly indicted and jointly tried for the murder of one John Bailey. Over the objection of the defendants, the court permitted the state to prove by the witness Armstead a declaration in the nature of a threat made by defendant Harris to the deceased shortly before the shooting; the defendant Jones not being present. The contention is that this was error because no evidence had been introduced tending to show a conspiracy existing between the two defendants at the time the declaration was made, and that therefore it was not admissible as against Will Jones. The objection was interposed in behalf of both defendants, and no request was made of the court to limit the evidence to the case as against Harris. The evidence was clearly admissible as against defendant Harris, and the defendant Jones could not interpose a general objection which would keep out of the case entirely evidence clearly admissible as against his codefendant. The court will not therefore be put in error for overruling the objection of the defendants. While, at the time this evidence was admitted, the testimony tending to show a conspiracy between the defendants was very shadowy evidence was subsequently introduced from which the jury might infer that such...