Hendley v. State

• Decision Date: 21 June 1917
• Docket Number: 4 Div. 676
• Parties: HENDLEY et al. v. STATE.
• Court: Alabama Supreme Court

76 So. 904

200 Ala. 546

HENDLEY et al.
v.
STATE.

4 Div. 676

Supreme Court of Alabama

June 21, 1917

Rehearing Denied Nov. 22, 1917

Appeal from Circuit Court, Henry County; H.A. Pearce, Judge.

Robert Hendley, Ky Hendley, and Newt Hendley were convicted of murder, and they appeal. Affirmed. [76 So. 905]

W.O. Long, of Abbeville, for appellants.

W.L. Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.

THOMAS, J.

The defendants, jointly indicted for murder in the first degree, were convicted of murder in the second degree, and their punishment was by the jury fixed at 25 years' servitude in the penitentiary. The sentence of the court was pursuant to the judgment.

The tendency of the state's evidence was to show that the defendants had threatened to kill deceased, and that, in pursuance of such threats, they went in search of him, and, meeting him in the public road, shot him to death. There was a further tendency of the evidence to show that the defendant Ky Hendley fired the fatal shot, and that the defendant Robert Hendley cut the throat of the deceased. That there had been a previous difficulty between these parties was indicated by a further tendency of the evidence.

Under their plea of not guilty defendants deny an unlawful and willful killing of the deceased, and say they acted only in self-defense.

We have been unable to find that this court has ever passed upon the question involved in the insistence of appellants' counsel that the judgment entry does not affirmatively show that the jury did hear the evidence in the case. The reporter will set out the judgment entry.

As will be noted, the judgment entry positively recites that a jury for the trial of the defendants was selected; that the indictment was read to that jury; that the defendants pleaded "not guilty" to the indictment; and that thereupon "came a jury of good and lawful men," "who, being first duly sworn, on oath say," etc. This court has held this recital to be a sufficient averment that the jury were properly sworn. Storey v. State, 71 Ala. 329, 335; Roberts v. State, 68 Ala. 515, 524; Mitchell v. State, 58 Ala. 417.

As to the sufficient impaneling of the jury, the recitals of the judgment entry are that the jury was selected and sworn, and rendered the verdict. Objection to the impaneling of the jury must be taken in the court below, and exception reserved, in order that the matter may be reviewable by this court. Brassell v. State, 91 Ala. 45, 8 So. 679.

It is the duty of the court to see to it that the jury hear all the evidence in the [76 So. 906] case; and unless the record shows to the contrary, this court will presume that the trial court discharged its duty in this regard. Brassell v. State, supra.

In the case of Davis v. State, 136 Ala. 20, 33 So. 817, a majority of the court held, on the recitals made in the judgment entry, that it was sufficiently shown thereby that the verdict was rendered by a jury of 12. It will be observed that the recital was, "Thereupon came a jury of good and lawful men, to wit," followed by the names of 11 individuals, and the further recital, "who on their oaths do say, 'We, the jury, find the defendant guilty,' " etc. The ruling in that case was based on the fact that at common law, and in this state, a jury is known to be constituted of 12 men, and upon the reasoning that the recital, in so far as it asserted "return of verdict" by a jury, was a proper one, to control the clerk's unnecessary interpolation of the names of the jury, showing only 11 names.

The recitals in the judgment entry in the instant case were as specific as, if not more so than, those held sufficient in the Davis Case, supra.

There was no error in refusing to allow the witness Tessie Lott...