Long v. State

• Decision Date: 07 February 1889
• Citation: 86 Ala. 36,5 So. 443
• Parties: LONG v. STATE.
• Court: Alabama Supreme Court

5 So. 443

86 Ala. 36

LONG v. STATE.

Supreme Court of Alabama

February 7, 1889

Appeal from city court of Mobile; O. J. SEMMES, Judge.

Indictment of Ellis Long for setting fire to "a dwelling-house of Thomas Martin, in which there was at the time a human being." Before entering on the trial, the defendant moved to dismiss the prosecution, "on the ground that he was made a witness for the state in a prosecution before the mayor of Mobile against one John Wilson for the same offense and subsequently on an application by said Wilson for habeas corpus, and was summoned and used by the state on said investigation." In support of this motion he offered to prove that, on April 24th, 1888, John A Sullivan, a detective officer of the city of Mobile, having in his hands a warrant for the arrest of the defendant on this charge, and having already arrested said Wilson "came to him and told him to appear the next day as a witness against the said Wilson, on the hearing before the mayor, informing him at the time that he [the officer] had a warrant for the arrest of the defendant, but would not arrest him at all, since he was going to use him as a witness for the state in the case against the said Wilson, and that he wanted the defendant to tell him all about the burning of Martin's house; that he [defendant] agreed to do so, and thereupon went with the said detective down to the guard-house, and there disclosed to said detective, under his said promises, in the presence and hearing of Gus Roulston, the clerk of the chief of police, all that he knew about the matter, concealing nothing, but showing up how he knew about it all, and what; that the defendant was afterwards put on the stand as a witness against Wilson in the mayor's court, and used as a witness against him on that trial; that later on, also in the habeas corpus proceedings by said Wilson, he was likewise used as a witness for the state; and that said Wilson, in these proceedings, was held under the same charge for arson under which defendant is now indicted and tried." On objection by the state, the court declined to hear or receive this evidence, and refused defendant's said motion to dismiss, to which ruling by the court the defendant duly excepted. On the trial of the cause said Martin testified to the burning of the house in which he lived, and in the front room of which he carried on "a little eating-house, where he served coffee and meals for coal boys;" and that Mrs. Baker, the divorced wife of the defendant, "carried on the same kind of business," said Wilson and the defendant boarding with her. The defendant objected to the evidence about Mrs. Baker, Wilson, and said Long living in that house, and carrying on the same kind of business that witness did, and he excepted to the overruling of the objection by the court. Mrs. Baker was also examined as a witness for the state, against the objection and the exception of the defendant; her testimony relating to her removal to the house, and the kind of business she there carried on, subsequent to the divorce. The court also admitted as evidence, against the objection and exception of the defendant, his statements to Sullivan, the detective, to the effect that he went with Wilson to Martin's house the night of the fire, and saw him set fire to it; and also his statements or confessions, the same in substance, to one Ben Jackson, which were made about the same time. In reference to these confessions, the defendant requested the following charge in writing: "(40) If the jury, in view of the evidence, are not satisfied that the statements made by the defendant to Jackson were made freely and voluntarily, they should be rejected as wanting in credibility, or as not entitled to weight in determining the question of guilt or innocence." The court refused this charge, and the defendant excepted. Defendant was convicted, and appeals.

James Cobbs, for appellant.

T. N. McClellan, Atty. Gen., for the State.

CLOPTON J.

The original venire having been exhausted without completing the jury, the city court directed the judge of probate to bring into court what is known as "the city court jury-box," from which 50 names were drawn as talesmen, in open court. The jury still being incomplete, the same proceeding was repeated, except that, the key of the box not being obtainable, it was opened by a key procured from the solicitor. Objection was taken to this manner of drawing jurors, on the ground that by the act of February 16, 1885 it was the duty of the judge of probate to deliver to the clerk of the court, when in session, the jury-box and the key of the same, and that the clerk should remain the custodian as long as the court should remain in session. By the amendatory act of February 24, 1887, this provision of the statute was repealed, and in lieu of it was substituted a provision, which imposed on the judge of the city court the duty to direct the judge of probate to bring the jury-box into court as often as may be necessary during the term. Acts 1884-85, p. 534; Acts 1886-87, p. 201. Also, it is provided, by the act to regulate the mode of selecting, drawing, and impaneling grand and petit jurors for the county of Mobile, that "the provisions in relation to the selecting, drawing, and summoning of jurors shall be construed as merely directory, so far as the validity of the organization of the jury is concerned, and all juries drawn in substantial compliance with the act shall possess the power to perform all duties belonging to such juries. The provisions of the act, so far as they impose duties upon any person or persons, or upon any judge or court, are mandatory. Acts 1882-83, p. 501. The drawing of the jurors was in substantial compliance with the provisions of the statute in force at the time of the trial. The statute prescribing the causes for which a person, drawn and proposed as a juror, may be challenged, was not intended to take away from the court the discretionary power to excuse any person who appears to the court to be unfit to serve on the jury. This power is essential to procure fit and competent persons to serve as jurors, and to secure a due and efficient administration of the law, but should be exercised consistently with the right of the accused to have a jury selected from the list served on him as far as practicable. There must be sufficient cause. The power is conferred by express legislative enactment. Section 4335 of Code 1886 provides: "The court may excuse from service any person summoned as a juror, if he is disqualified or exempt, or for any other reasonable or proper cause, to be determined by the court." And by section 4325 it is made the imperative duty of the court, before administering the oath, to ascertain that the juror possesses the qualifications required by law. There is no error in excusing Manuel Bettencourt, who was drawn as a juror, it appearing that he could not understand the English language sufficiently to qualify him to serve as such. When Percy Dixon was drawn and sworn touching his qualifications as a juror, in response to the question whether he had a fixed opinion as to the guilt or innocence of the accused that would bias his verdict, he replied: "I know nothing about the case but what I have read in the papers. At the present time I have an opinion as to the guilt or innocence to a certain extent. I am afraid I would go into the jury-box with a biased opinion, but, after being sworn as a juror, I could lay that opinion aside, and find a verdict upon the evidence alone, without reference to the opinion I now have." The object of the constitutional guaranty of a speedy trial by an impartial jury is to obtain jurors for the trial of criminal prosecutions free from bias, prejudice, or interest, who can try the case upon its merits, and according to the law and the evidence, uninfluenced by previous impressions. The statute disqualifies as a...