Harris v. State
| Citation | 55 So. 609,172 Ala. 413 |
| Parties | HARRIS v. STATE. |
| Decision Date | 18 May 1911 |
| Court | Supreme Court of Alabama |
Appeal from Criminal Court, Jefferson County; S. L. Weaver, Judge.
Will Harris was convicted of robbery, and he appeals. Reversed and remanded.
Robert C. Brickell, Atty. Gen., for the State.
Section 32 of the jury law (Acts Special Session 1909, p. 317) provides that, "whenever any person or persons stand indicted for a capital felony, the court must on the first day of the term, or as soon as practicable thereafter, make an order commanding the sheriff to summon not less than fifty nor more than one hundred persons including those drawn and summoned on the regular juries for the week set for the trial of the case, and shall then in open court draw from the jury box the number of names required with the regular jurors drawn and summoned for the week set for the trial to make the number named in the order." Said section also contemplates that the sheriff shall serve the defendant with a copy of the indictment and a list of all jurors "summoned" for the week of which the trial is set as well as those specially drawn. The order of the court, in the instant case, is defective and does not comply with the statute. The number named in the order is fixed at 90 persons, to be composed of 60 drawn for the week and 30 specially drawn by the court, when the number fixed should include only the regular jurors drawn and "summoned" for the week, and the judge should have drawn a sufficient number from the jury box, which, when added to those regular jurors drawn and "summoned," would equal the number fixed in the order. It might be that if the record showed that all regular jurors who had been drawn were summoned, the erroneous order of the court would be cured, if it also appeared that the number drawn by the court and the regular jurors drawn and summoned for the week equaled the total number fixed by the court; but this does not appear, and the record fails to disclose that the defendant was tried by a legal venire. Elijah Jackson v State, 55 So. 118. We fully appreciate the almost impossibility of a compliance with the jury law, by the trial courts, when cases are set and the number of jurors are fixed before the sheriff returns the summons for the regular jurors for the week for which the case was set; but we must construe the law as it is, and not as it should be. There could be little difficulty, if section 32...
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...regular jury only for the first week of the court prior to the beginning of the term of court. Acts 1909, § 15, p. 310. In Harris v. State, 172 Ala. 413, 55 So. 609, pointed out the impracticability of complying with these provisions of the statute when capital cases are set for a later wee......
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Lingold v. State
... ... The court ... cannot, in the very nature of things, comply with the statute ... in drawing special jurors until the regular jurors for the ... week of defendant's trial have been summoned. Until then ... it has no basis or predicate upon which to act in drawing ... such special jurors. Harris v. State, 172 Ala. 414, ... 55 So. 609; Johnson v. State, 4 Ala.App. 50, 57 So ... 593; Jackson v. State, 171 Ala. 42, 55 So. 118; ... Andrews v. State, 174 Ala. 16, 56 So. 998; ... Bailey v. State, 172 Ala. 423, 55 So. 601; ... Johnson v. State, 5 Ala.App. 43, 59 So. 708; ... Fowler v ... ...
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