Herndon v. State

• Decision Date: 15 June 1911
• Parties: HERNDON v. STATE.
• Court: Alabama Court of Appeals

56 So. 85

2 Ala.App. 118

HERNDON v. STATE.

Court of Appeals of Alabama

June 15, 1911

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

Frank Herndon was convicted of rape, and he appeals. Affirmed.

Brannen & Brannen, for appellant.

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

DE GRAFFENRIED, J.

The defendant was indicted for rape, was tried and convicted, and was sentenced to the penitentiary for 10 years.

The undisputed evidence in the case shows that the prosecutrix is a woman whose reputation for chastity and for truth is bad, and while she testifies that defendant had sexual intercourse with her under circumstances constituting the crime of rape, and while her testimony is corroborated in some material particulars, the corroborative evidence, as well as the other evidence, tends strongly to show that, as a matter of fact, no rape was committed, but that the defendant had sexual intercourse with prosecutrix, on the occasion complained of, with her consent and without that necessary element of rape--force--either actual or legally implied. The evidence, however, presented a case for the consideration of the jury, and the only matters before us are the questions of law presented by the record.

The act approved August 31, 1909 (Acts 1909 [Sp. Sess.] p. 305), and known as the jury law, does not intend to affect, nor does it in any way affect, the right of the state or the defendant in a criminal case to challenge a juror for any cause of challenge existing under the laws of the state at the time of its adoption. While the right of peremptory challenge does not now exist in criminal cases, the right of challenge for cause remains undisturbed.

Section 32 of the act above referred to says, in express terms, that in all cases of misdemeanor, and in all cases of felony not punished capitally, the court shall require two lists of all the regular jurors for the week, who are competent to try the defendant, to be made, one for the solicitor and the other for the defendant, and from the lists thus made up the jury to try the case shall be chosen. In capital cases, the same section of the act provides for similar lists to be made for the solicitor and the defendant, after the court has inquired into and passed upon the qualifications of all the persons who appear in court to serve as jurors. No juror can be permitted to sit as a juror in a case, if he is properly objected to, as to whom a cause for challenge exists, and, when the court is passing upon the qualifications of jurors to try a case preparatory to the making up of the jury lists, the state or defendant may object to the placing of the name of any juror on the lists if cause for his challenge exists, and if, against the objection of a defendant, the name of a person, as to whom he has a proper challenge for cause, is placed, under the direction of the court, upon the lists, the court making the order would be guilty of reversible error, if injury thereby resulted to the defendant.

The fact that a person called as a juror is not a citizen of the county in which the defendant is tried is cause for challenge, both on the part of the state and the defendant. The objection, however, that cause for such challenge existed comes too late when it is not made until after the verdict has been rendered. The defendant, may, if he sees proper so to do, move the court for a new trial on this ground, but the action of a trial court in granting or refusing to grant a new trial in a criminal case on this, or on any other ground, in this state is in the unrevisable discretion of the trial court. That the refusal of a new trial in a criminal case cannot be made the subject of review on appeal has been repeatedly held, and is the settled law of the state. It can only be changed by statute, or by a decision of the Supreme Court overruling all of its former decisions on the subject. Ferguson v. State, 149 Ala. 21, 43 So. 16; Tom Scott v. State, 63 So. 1031. It therefore follows that the court below cannot be put in error for refusing to grant appellant a new trial on the above ground or upon any other ground contained in his motion therefor.

2. The court, when it fixed the day for the trial of this defendant, made an order that his venire should consist of 88 jurors, 50 special jurors and 38 regular jurors, drawn and summoned for the week in which his case was set for trial. The jury for the week in which defendant's case was set for trial had not been impaneled when the day was fixed for defendant's trial, and he was served by the sheriff, as the law required, under the order of the court, with a copy of the indictment and with a list of the 88 jurors constituting the venire for his trial. When the regular jurors for the week during which defendant was tried were impaneled and sworn as jurors for the week, only 26 of the 38 were actually impaneled, the record affirmatively showing that the court, for good cause shown, excused 11 of the jurors from jury service, but it is silent as to why only 26, and not 27, which, with the 11 who were excused, would have made the 38 drawn and summoned, were impaneled as jurors for the week. It may be that, when the court had the jury sworn and impaneled, one juror had left the courtroom and could not be found, or that, for some other good and valid reason, the court failed to require him to be impaneled as a juror. It is, however, unnecessary for us to speculate about the matter, for the simple reason that we find nothing in

the circumstance of which, under the facts disclosed by the record, the defendant can be heard to complain. There is nothing in our jury law requiring the trial court to show by its records its reasons for not having a juror drawn and summoned for a...