Jones v. State

• Decision Date: 10 August 1894
• Citation: Jones v. State, 104 Ala. 30, 16 So. 135 (Ala. 1894)
• Parties: JONES v. STATE.
• Court: Alabama Supreme Court

16 So. 135

104 Ala. 30

JONES v. STATE.

Supreme Court of Alabama

August 10, 1894

Appeal from district court, Lauderdale county; W. P. Chitwood Judge.

Heywood Jones was convicted of rape on the person of Leona Pool, and appeals. Reversed.

When the case was called for trial, the defendant moved the court to quash the venire, a list of which was served upon the defendant, and assigned several grounds for said motion. The first was, that on the regular venire issued for the week there appeared the name of "H. A. Ticer," and in making up the panel for the week, "when H. A Ticer's name was called, one W. A. Ticer answered, and stated that he was the only Ticer who lived in his precinct." The second and third grounds of said motion were that on the regular venire for the week there were the names of two persons, who had served as jurors in said court within 12 months next preceding the trial of this case. The fourth and fifth grounds are sufficiently stated in the third paragraph of the opinion. The court overruled this motion to quash the venire, and the defendant duly excepted.

On the trial of the case, as is shown by the bill of exceptions, the evidence for the state tended to show that the defendant was guilty as charged in the indictment; while the testimony for the defendant was in conflict with that of the state in material facts, and tended to show that the defendant had had intercourse with the said Leona Pool; but that it was with her consent. The several rulings of the trial court upon the evidence, to which exceptions were reserved by the defendant are sufficiently stated in the opinion.

John T Ashcraft, for appellant.

Wm. L. Martin, Atty. Gen., for the State.

HARALSON J.

1. It is hardly necessary to say, that a motion for a new trial in a criminal case is a matter within the discretion of the court to grant or not, and its denial cannot constitute a ground for error in this court.

2. A mistake in the given name of W. A. Ticer, one of the persons composing the venire served on the defendant for his trial, was no ground for a motion to quash the venire. The name could have been discarded, on motion of the defendant, and another juror summoned in his stead, but no such motion was made. Code, § 4322; Roberts v. State, 68 Ala. 156. Nor was it any ground to quash the venire, because two of the persons constituting the venire had served as jurors within 12 months last past. Arp v. State, 97 Ala. 5, 12 So. 301; Gibson v. State, 89 Ala. 121, 8 So. 98; Fields v. State, 52 Ala. 348.

3. The fourth and fifth grounds urged for quashing the venire, were the same in substance, and each without merit. If the requirement of the statute, that the residences of the jurors composing the venire shall be stated, is mandatory, which we do not now decide, it appears that opposite the name of each juror was a figure, running from 1 to 13, with a mark in front of each,-thus: #,-which number and mark, the bill of exceptions states, the court inspected, and decided that they meant the number of the precincts in which the jurors lived; and we think this was a fair interpretation of these signs, such as any reasonable person would put upon them, and by which he could not be misled. It would be better, however, to give the name of the city or town, fully written out, and in case the residence is indicated by the beat in which one resides, to write the word, "Beat," before its number.

4. There was no error in allowing the state to ask the witness, Leona Pool, the party alleged to have been ravished, whether or not she consented for the defendant to have sexual intercourse with her. This question was asked on rebuttal, on cross-examination, after the witness had stated facts, brought out by the defense, for the purpose of showing that she had consented. The want of consent on the part of the party alleged to have been raped is an essential constituent of the crime, to be proved by the prosecution, and is a fact, to which the woman may swear, to be weighed in connection with all the other evidence tending to show consent. McQuirk v. State, 84 Ala. 430, 4 So. 775; Allen v. State, 87 Ala. 107, 6 So. 370.

5. The court allowed the prosecutrix, Leona Pool, to prove, against the objection of the defendant, why she was absent at the last term of the court; that her grandmother, Emily Connor and her sister, Ida Moore, with whom she lived, had made her go to the...