McKenney v. State
| Decision Date | 30 June 1919 |
| Docket Number | 6 Div. 588 |
| Citation | 82 So. 565,17 Ala.App. 117 |
| Parties | McKENNEY v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Jefferson County; C.W. Ferguson, Judge.
John McKenney was convicted of murder in the second degree, and he appeals. Affirmed.
Beddow & Oberdorfer and Roderick Beddow, all of Birmingham, for appellant.
J.Q Smith, Atty. Gen., and Richard V. Evans, Asst. Atty. Gen for the State.
The defendant was indicted for murder in the first degree, was tried and convicted of murder in the second degree, from which judgment of conviction he appeals.
Counsel have assigned errors, and we will treat them in the order in which they are assigned and argued.
The first assignment (that the court erred in refusing to quash the venire) is not argued or otherwise insisted upon, except in connection with the second assignment. It is enough to say that no fraud or other sufficient grounds for quashing the venire is alleged or shown.
The second assignment is that the court was in error in overruling defendant's motion not to be required to go to trial with the venire from which he was required to select his jury for his trial. An examination of the record discloses a proper order for a venire of 99 jurors for the week beginning December 2, 1918, denoted as capital week. Also, the fact that, of the 45 regular jurors drawn for the week, 18 were returned not found. On November 23d, the court drew from the jury box the names of 72 jurors, who, with the 27 regular jurors drawn and summoned for the week beginning December 2d, should constitute the venire of 99, as ordered. Due service as required by law was had upon the defendant on November 27, 1918.
The record informs us that this case was called on December 2d and passed to December 3d, when it was tried. The motion, which defendant complains of, was filed December 2d and overruled December 3d.
The defendant was required to strike from a list containing 32 names.
We pause to remark that it is one of the peculiarities of the 1909 jury law (Laws 1909 [Sp.Sess.] p. 305) that not less than 24 names are required from which to select a jury for the trial of misdemeanors, but only 20 in the case of a capital felony. So in this case the venire was not reduced below the minimum, and the ground of the motion fails of support in the record. From aught that appears in the record and the agreed statement of facts upon which the motion was tried, the court did not impanel separately the regular jurors drawn and summoned for that week, but impaneled all regular and special for the trial of the capital cases set for trial that week. It does not appear, therefore, that any were improperly excused and not thereafter again resummoned. The facts here differentiate this case from those cited by counsel for appellant, and bring this case within the influence of what was said in O'Rear v. State, 188 Ala. 71, 66 So. 81. We must also indulge every reasonable presumption as to the correctness of the action of the trial court.
The third assignment of error is in the...
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...and this, of course, only where the issue of self-defense is presented. Sanford v. State, 2 Ala.App. 81, 88, 57 So. 134; McKenney v. State, 17 Ala.App. 117, 82 So. 565; 30 C.J., p. 229, Sec. In Farley v. State, 279 Ala. 98, 182 So.2d 364 (1966), Justice Merrill stated the proposition well t......
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Holloman v. State
...and this, of course, only where the issue of self-defense is presented. Sanford v. State, 2 Ala.App. 81, 88, 57 So. 134; McKenney v. State, 17 Ala.App. 117, 82 So. 565; 30 C.J., p. 229, Sec. Counsel for appellant next asked if a witness knew the victim's general reputation in the community ......
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...of the deceased is not involved as an issue, and that proof relative thereto is generally inadmissible." See, also, McKenney v. State, 17 Ala.App. 117, 82 So. 565. ruling of the court under discussion appears of record and is as follows: "Wallace Hetherington, a witness for the State, testi......