Johnson v. State, 6 Div. 800

• Court: Supreme Court of Alabama
• Writing for the Court: THOMAS, J.
• Citation: 203 Ala. 30,81 So. 820
• Docket Number: 6 Div. 800
• Decision Date: 10 April 1919
• Parties: JOHNSON v. STATE.

81 So. 820

203 Ala. 30

JOHNSON
v.
STATE.

6 Div. 800

Supreme Court of Alabama

April 10, 1919

Appeal from Circuit Court, Lamar County; R.I. Jones, Judge.

Wes Johnson was convicted of murder in the first degree, and he appeals. Affirmed. [81 So. 821]

Leith & Powell, of Jasper, for appellant.

J.Q. Smith, Atty. Gen., and Horace Wilkinson, Asst. Atty. Gen., for the State.

THOMAS, J.

Defendant was convicted of murder in the first degree, and sentenced to the penitentiary for life.

The requisite orders of arraignment and plea of not guilty, fixing the date for defendant's trial, for the venire and the drawing of jury, and for service upon defendant of a certified copy of the indictment against him, together with a copy of the venire, etc., are each shown by the record and the return to the certiorari issuing from this court to the clerk of the circuit court.

The bill of exceptions recites that defendant introduced in evidence a copy of the venire and indictment served on him in pursuance of the court's order, and sets out the venire and a certified copy of the indictment against "Wes Johnson, alias West Johnson," charging murder in the first degree for the killing of "Effie Myatt by shooting her with a pistol." In the record proper the same indictment is recited to have been found at a regular term of the circuit court of the county, and on which the trial was had, resulting in a verdict of "guilty of murder in the first degree and *** life sentence to the penitentiary." Hardley v. State, 79 So. 362, 363; Howard v. State, 165 Ala. 18, 27, 50 So. 954. The order for the venire (erroneously contained in the record as first filed in this court) is shown to have been correctly and duly made and entered in the trial court, by the return of the clerk of the circuit court to the writ of certiorari issuing in said case from this court. Gen.Acts 1909, p. 319, § 32; Cosby v. State, 80 So. 803; White v. State, 78 So. 449; Cain v. State, 77 So. 453.

Defendant's motion to quash the venire was properly overruled. The slips of paper on which were written the names of special jurors duly drawn for the trial of defendant, on the charge of murder in the first degree, were delivered to the clerk of the court, who prepared a list thereof, together with the regular jurors drawn and summoned for the week in which the trial was set, being the venire in said case, and a certified copy of said indictment, which papers, delivered by the clerk to the sheriff, in compliance with the mandate of the law and the court's order, were forthwith served upon the defendant by the sheriff.

There was no error in the court's excusing "at the request of the state" those jurors drawn, summoned, and in attendance on the court for the trial of defendant on said charge, for the reason and on the ground that said jurors did, under oath, declare that they "had a fixed opinion against capital punishment or would not convict on circumstantial evidence." The statute provides that--

"All laws, general, special or local, regulating the selection, drawing, summoning or impaneling of grand, or petit juries, or prescribing the qualifications of jurors, or defining who are exempt from jury service, or exempting certain persons or classes of persons, from service upon juries, are hereby expressly repealed, it being the intent of the Legislature, that, this act shall be the exclusive law on such subjects, in all the courts of the state of Alabama. *** 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, and shall cause an order to be issued to the sheriff to summon all persons therein named to appear in court on the day set for the trial of the defendant and must cause a list of the names of all the jurors summoned for the week in which the trial is set, and those drawn as provided in this section, together with a copy of the indictment, to be forthwith served on the defendant by the sheriff, and the defendant shall not be entitled to any other or further notice of the jurors summoned or drawn for his trial nor of the charge or indictment upon which he is to be tried. On the day set for the trial, if the cause is ready for trial, the court must inquire into and pass upon the qualifications of all the persons who appear in court in response to the summons to serve as jurors, and shall cause the names of all those whom the court may hold to be competent jurors to try the defendant or defendants to be placed on lists, and if there is only [one] defendant on trial shall require the solicitor to strike off one name and the defendant to strike off two names, and in case there are two or more defendants on trial the solicitor shall strike one and every defendant shall strike one name and

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