Lingold v. State

• Decision Date: 14 May 1914
• Docket Number: 266
• Citation: 10 Ala.App. 57,65 So. 304
• Parties: LINGOLD v. STATE.
• Court: Alabama Court of Appeals

65 So. 304

10 Ala.App. 57

LINGOLD v. STATE.

No. 266

Court of Appeals of Alabama

May 14, 1914

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

John Lingold, Jr., alias, etc., was convicted under an indictment for murder in the first degree, and he appeals. Reversed and remanded.

Henry Opp, W.L. Parks, and Powell & Albritton, all of Andalusia for appellant.

R.C Brickell, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for the State.

THOMAS, J.

Section 32 of the Jury Law (Acts Sp.Sess.1909, p. 317) provides:

"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 50 nor more than 100 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," etc.

In the present case the defendant was indicted for murder in the first degree, and was arraigned in open court on Tuesday June 24, 1913, and his trial was then set for Thursday, July 3, 1913, and an order made that the sheriff summon 35 special jurors, whose names were then drawn from the jury box. At the time of this arraignment, order, and drawing, the regular jury, consisting of 40 persons, drawn for the week set for the trial, had not been summoned, nor had the venire therefor been returned. On June 28, 1913, four days, it will be observed, after the special jury mentioned was drawn, the sheriff executed and returned to the clerk the venire of regular jurors, showing 38 of them served, whereupon the clerk then completed the unfinished order of the court by inserting in the blank left in the order the number of persons which were to constitute the venire to try defendant's case, fixing the number at 73, consisting of the 35 special jurors so previously drawn by the court on June 24, 1913, the day of defendant's arraignment, and the 38 regular jurors so returned by the sheriff on June 28, 1913, as having been served. This procedure is certainly in violation of the terms, and, we think, in violation of the purpose and the spirit of those provisions of the jury law which we have hereinbefore quoted. That law imposes upon the court the duty of fixing the number of persons which are to constitute the venire to try defendant's case, clothing it with a discretion to be exercised to that end within certain named limits, whereby it cannot make the number it determines upon less than 50 nor more than 100, but within these limits the matter of the number is to be determined by the court, not by the clerk, not by the sheriff, and not by accident or chance. It is a judicial function, not a ministerial one, and the duty is to be discharged and the discretion to be exercised by the court, by its entering an order fixing the number of jurors to which defendant is decided to be entitled; and this order is to be executed by the court, by its drawing such a number of special jurors as, when added to the number of regular jurors drawn and summoned for the week, will be sufficient to make up the number that is fixed by and in such order. Here there was no order of court fixing the number, and, even if there had been, it was not and could not have been executed by the court, who, alone by the mandates of the statute, should execute it, because the court...