Howard v. State

• Citation: 49 So. 108,159 Ala. 30
• Parties: HOWARD v. STATE.
• Decision Date: 18 February 1909
• Court: Alabama Supreme Court

49 So. 108

159 Ala. 30

HOWARD v. STATE.

Supreme Court of Alabama

February 18, 1909

Rehearing Denied April 6, 1909.

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

J Finley Howard was convicted of murder in the second degree and he appeals. Reversed and remanded.

Mayfield J., dissenting.

It seems from the record that the case was called, the defendant arraigned, and his case set for the second week of court, and an order was entered by the judge drawing 50 men as a special venire, which, together with the jurors summoned for that week of court, should constitute the venire for the trial of the cause. The case was passed until a subsequent day of the same week, and when reached on that date was passed until a day of the following week; the court ordering that the 28 jurors regularly summoned and impaneled for the week in which the case was originally set should attend the following week for the purpose of participating in the trial of this case. Motion was made to quash the venire on this ground, and as each of said 28 regular jurors were placed upon the defendant he objected to being required to pass upon them as jurors for the trial of this cause.

Foster Samford & Prestwood, Henry Opp, Albritton & Albritton, and I. M. Chilton, for appellant.

Alexander M. Garber, Atty. Gen., and Thomas W. Martin, Asst. Atty. Gen., for the State.

ANDERSON, J.

The trial court did not err in overruling the defendant's motion to quash the venire. The order of the court complied with the statute. Section 7265 of the Code of 1907. The case was set for trial during the same week of the setting of same, and the special venire drawn, together with the panel organized for said week, constituted the venire. The fact that the case was continued over to the next week before the trial was entered into did not render the venire illegal, though as intimated in the case of Thomas v. State, 94 Ala. 75, 10 So. 432, the court could have well reset the case and ordered another venire. The regular jurors, as fixed by the statute, to constitute a part of the venire to try a capital case, are those either organized when the case is set for the same week or those drawn when set for a subsequent week; that is, those organized as drawn for the week during which the case is set for trial and not the week when the case may be actually tried. Thomas v. State, 94 Ala. 75, 10 So. 432; Gerald v. State, 128 Ala. 6, 29 So. 614. While these cases hold that the continuing of the case over to a week succeeding the one for which it was set for trial before entering into same did not render it necessary to draw a new venire, this case presents a question not directly raised or considered in said cases. The venire may have been legal, and should not have been quashed; but did it contain incompetent jurors who were improperly put upon the defendant over his objection? Not jurors who were incompetent when the venire was drawn, but who became incompetent because of the action of the court in causing them to serve the succeeding week.

Section 7247 of the Code of 1907 provides that no person shall be competent to serve on a petit jury more than one week in any year, unless they are continued over to a succeeding week, because actually engaged in a trial submitted to them during the week of their service. It is true this statute excepts such persons as may be " specially summoned to serve as jurors in a capital case. " (Italics supplied.) But the regular panel in the case at bar were not "specially summoned to serve," and only became a part of the venire to try same because the week fixed for the trial thereof was the week for which they were organized and serving as regular jurors. Having served the previous week as regular jurors, they became incompetent to serve as such a subsequent week. It is true they were ordered back only to serve the succeeding week upon the venire of this particular case; but they became a part of the venire as regular jurors, and not because they were "specially summoned to serve" as a part of the special venire. These jurors, being incompetent, should not have been put upon the defendant, as it was the imperative duty of the court to have peremptorily excused them as their names were drawn in the organization for trial. Section 7270 of the Code of 1907. Whether the failure to do this was reversible error, unless the point was taken by the defendant, we need not decide, as it was not waived, for each of said regular jurors were objected to by the defendant. As heretofore stated, this point was not raised nor directly considered in the Thomas and Gerald Cases, supra, and they are not, therefore, authorities against the present holding. The trial had not been entered into during the week from which it was carried over. Holland's Case, 107 Ala. 412, 18 So. 170, 54 Am. St. Rep. 101. Moreover, the statute (section 7247) requires that the jurors must be actually engaged in a trial submitted to them, in order to be competent to try same the succeeding week.

As this case must be reversed, it is needless for us to determine whether or not the trial court erred in refusing a change of venue.

The trial court committed no error in ruling upon the evidence and charges. The charges refused the defendant were either bad or had been covered by given charges.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

DOWDELL, C.J., and SIMPSON and DENSON, JJ., concur.

MAYFIELD J. (dissenting).

The importance of the two questions herein treated, involving, as they do, the right to a fair and impartial jury trial, which has been well said to be the palladium of our liberties, and which alone can preserve and perpetuate our republican form of government, constrains me to state the reasons which impel me to dissent from the opinion and conclusions of my Brothers. However, I feel that I should preface this opinion by saying that the probability is that my Brothers are right and I am wrong. The desire of each to reach the correct conclusion is no less earnest than mine, while my capacity and experience to pass upon these questions cannot be said to measure up to theirs. We have all examined and studied the same record and authorities, and thereby are led to our respective conclusions; and, notwithstanding my desire to agree with and follow my Brothers, I am firmly of the conviction that, as to these two fundamental questions, the majority opinion is radically wrong.

I concur in the opinion of the majority that this case should be reversed; but I am of the opinion that the reversal is placed upon the wrong ground. The majority opinion, in effect, overrules two, if not more, of the former decisions of this court. It is true the opinion attempts to distinguish this case from the other decisions by saying that the exact question raised in this case, upon which solely this decision is based, to wit, the right to challenge the 24 regular jurors for cause, was not raised in the other cases, and was not, therefore, passed upon by the court in those cases. It is true that the exact question was not discussed in the cases referred to, but it is not certain they were not raised on those appeals. In fact, the writer is of the opinion that the exact question was necessarily raised on those appeals. Those cases decided (as the majority opinion in this case decides) that when a venire is properly drawn for the first week of the court, and the case is then continued, or passed for trial, till a day of the succeeding week, the venire thus drawn constitutes a proper, legal, and valid venire for the trial on the day to which the case is continued or passed, and that it is not error, but proper and legal, for the trial court to direct the persons constituting the venire to appear in court on that day, and that, when they so appear, the venire is still proper and legal and should not be quashed on motion. If the opinion of the majority is correct, at least 24 of that venire are incompetent jurors for the trial of the particular case, and were rendered so incompetent by the very act of the court in continuing or passing the case to the succeeding week, and in declaring them to constitute the venire, and directing them to appear as special jurors on a particular day of the succeeding week, for the trial of such case.

Can the trial court thus deliberately and knowingly deprive the state or the defendant of 24 veniremen without affecting the validity of the venire? Is is possible to make a valid and proper venire if the very act of making it renders 24 of the number incompetent? It is true that a venire may be valid though not a single person thereon be a competent juror. In such case, one act or law makes the venire,...