Harris v. State

• Court: Supreme Court of Alabama
• Writing for the Court: DOWDELL, C.J.
• Citation: 59 So. 205,177 Ala. 17
• Decision Date: 06 June 1912
• Parties: HARRIS ET AL. v. STATE.

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; ...