Irwin v. State

Citation220 Ala. 160,124 So. 410
Decision Date31 October 1929
Docket Number8 Div. 159.
PartiesIRWIN v. STATE.
CourtSupreme Court of Alabama

Certiorari to Court of Appeals.

Alberta Irwin was convicted of murder in the second degree, the judgment was affirmed by the Court of Appeals, 124 So. 408 and she petitions for certiorari. Writ denied.

Wert &amp Hutson, of Decatur, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

FOSTER J.

This is a capital case, and the only question considered by the Court of Appeals is the judgment of the circuit court overruling a motion to quash the venire.

It seems that Elmus Rutledge was drawn as a regular juror for the week of the trial of the case, and appeared and served as such. The list of the venire served on defendant showed the name of Elmus Drinkard, as residing at Albany. There was a qualified juror in the county named Elmus Drinkard who resided at Falkville, and who had served as a regular juror of the court for the preceding week.

The Court of Appeals affirmed the judgment, and appellant has applied to this court for a certiorari. This court has considered many aspects of the jury laws applicable to capital cases, as such laws have from time to time been amended.

The Court of Appeals applied to this case the principles given effect in the case of Evans v. State, 209 Ala. 563 96 So. 923. Petitioner claims the benefit of a policy such as was stated in the case of Carwile v. State, 148 Ala 576, 39 So. 220, followed in Walker v. State, 146 Ala. 45, 41 So. 878, and which is supposed to be manifested in the case of Spooney v. State, 217 Ala. 219, 115 So. 308, as reaffirmed in Doss v. State (Ala. Sup.) 123 So. 231. In the two cases last named, following Zininam v. State, 186 Ala. 9, 65 So. 56, this court reaffirmed the proposition that the requirements of section 8644, Code, are mandatory. This includes the provision that the special venire shall consist of those specially drawn and the regular jurors drawn for that week of court, and that a list of them must be served on defendant. Such should have been the order of the court in the Spooney Case, supra, whereas only 35 of the 48 drawn for the regular jury were ordered to be placed on the list. In making such an order, the court clearly disregarded the mandatory provision of the statute.

In the case of Carwile v. State, supra, it was held that a list of the venire served on defendant which contained the name of a person not properly on the list, because he had not been summoned, did not comply with a statute then in force, and a motion to quash the venire should have been sustained. This was based upon a statute which made the venire consist of a number of special jurors, with the regular jurors "drawn and summoned" for the week. This court held that there was reversible error, and the situation was not due to "a mistake in the name of any person summoned as a juror" within the saving clause of section 5007, Code 1896, then in effect, and that it cannot be said to have been without prejudice.

Petitioner expresses the conviction that this case should control on the pending petition. It doubtless would be so held but for changes in the law occurring since it was written as they have been interpreted by this court and re-enacted with such interpretation included.

While the express requirements of the jury law now as then, including the service on defendant of a list of the names of the venire, are mandatory notwithstanding the liberal terms of section 8636, Code of 1923, it nevertheless appears that this section, enacted subsequent to the Carwile Case, supra, when taken in connection with sections 8637 and 8648, some of whose provisions have been added since that opinion was written, means that "clerical and ministerial mistakes in the preparation of the venire" and list to be served on defendant do not furnish sufficient ground to quash the venire when it does not appear that prejudice resulted. Zininam v. State, supra; Spooney v. State, supra.

In line with this policy, this court refused to reverse in the Evans Case, supra, when by mistake the name of a juror appeared twice on the venire, having appeared on two slips in the jury box, and both of them had been drawn. While there was a division of this court on that subject, yet in McNutt v. State, 219 Ala. 116, 121 So. 435, the court refused to grant a certiorari to the Court of Appeals when that court followed the Evans Case, and that court has also followed it in Largin v. State, 20 Ala. App. 550, 104 So. 50, and Sullivan v. State, 119 So. 243, and the question there considered should now be regarded as firmly settled.

In the Zininam Case, supra, there was an error in the name of one juror in the list served on defendant, and the court improperly excused him from attending on account of such error. It was held that this was not sufficient ground to quash the venire, but that, if defendant desired to have placed on the panel the name...

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14 cases
  • Burns v. State
    • United States
    • Alabama Supreme Court
    • June 15, 1944
    ... ... Stewart v. State of Alabama, Ala.Sup., 17 So.2d 871, ... although in that case no constitutional question was ... involved ... "We ... need not inquire into the question of whether such a motion ... properly presents defendant's contention in the light of ... our case of Irwin v. State, 220 Ala. 160, 124 So ... 410, for we do not think the defendant had a right to be ... present and be heard in respect to the excuses of jurors ... presented to the judge organizing the jury for that week in ... view of the law which has application to Jefferson County in ... the ... ...
  • Roan v. State
    • United States
    • Alabama Supreme Court
    • June 9, 1932
    ...the specific provisions of the statute touching the court's order prescribing the constituents of a special venire. And in Irwin v. State, 220 Ala. 160, 124 So. 410, effect of the decision was that clerical and ministerial mistake in preparing the venire and list served on the defendant do ......
  • Thigpen v. State
    • United States
    • Alabama Court of Criminal Appeals
    • December 5, 1972
    ...Ziniman v. State, 186 Ala. 9, 65 So. 56; Spooney v. State, 217 Ala. 219, 15 So. 308. A possible solution was suggested in Irwin v. State, 220 Ala. 160, 124 So. 410, i.e., a short postponement, if justice required it, in order to have the venire list corrected. No such motion was here As wit......
  • Stinson v. State
    • United States
    • Alabama Supreme Court
    • May 28, 1931
    ...excused, this action of the court cannot be made a predicate for reversible error. Edgar v. State, 183 Ala. 36, 62 So. 800; Irwin v. State, 220 Ala. 160, 124 So. 410; Carmack v. State, 191 Ala. 1, 67 So. 989; v. State, 201 Ala. 387, 78 So. 449; Zininam v. State, 186 Ala. 9, 65 So. 56; Spoon......
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