McNutt v. State

• Decision Date: 05 February 1929
• Docket Number: 8 Div. 768.
• Citation: 23 Ala.App. 43,121 So. 432
• Parties: MCNUTT v. STATE.
• Court: Alabama Court of Appeals

121 So. 432

23 Ala.App. 43

MCNUTT v. STATE.

8 Div. 768.

Court of Appeals of Alabama

February 5, 1929

Rehearing Denied Feb. 12, 1929.

Appeal from Circuit Court, Lawrence County; James E. Horton, Judge.

Ben alias Ben O., McNutt, was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Certiorari denied by Supreme Court in McNutt v. State, 121 So 435.

Bricken P.J., dissenting in part.

Almon &amp Almon, of Decatur, R. L. Almon and E. B. Downing, both of Moulton, and A. A. Griffith, of Cullman, for appellant.

Charlie C. McCall, Atty. Gen., J. W. Brassell, Asst. Atty. Gen., and John R. Sample, Circuit Solicitor, of Hartselle, for the State.

BRICKEN P.J.

This appellant admittedly killed Charlie Pruitt by shooting him with a gun, and for said killing the grand jury indicted him charging murder in the first degree. The trial resulted in a conviction for murder in the second degree, and his punishment was fixed at imprisonment in the penitentiary for 18 years. This appeal is from the judgment of conviction duly pronounced and entered in accordance with the verdict of the jury.

It is first insisted by appellant that the court committed reversible error in striking his motion to quash the indictment on the grounds that the court was organized before 11 o'clock at the beginning of the term in which the indictment was found. There is no semblance of merit in this insistence. It is evident that this motion was based upon the provisions of section 6672 of Code 1923. This section is regulatory only, and merely directory; it expressly provides that "no order or judgment taken in violation of this section shall be declared *** void." From the record it affirmatively appears that the court below met on Monday, August 6, 1928, and that the indictment was regularly returned into open court on August 10, 1928. The controlling section of Code 1923, as to the terms of the circuit court, is section 6667, which provides that the circuit courts of the several counties of the state shall be open for the transaction of any and all business, or judicial proceedings of every kind from the first Monday in January to and including the last Saturday in June of every year; and from the first Monday after the 4th of July to, and including, the last Saturday before Christmas Day of every year. Under the provisions of this statute, the circuit court of Lawrence county-as well as all other counties in the state-remained continuously open during the entire year except for the two periods of time noted in the statute.

The next point of decision insisted upon as error is based upon the action of the court in overruling defendant's motion to quash the venire on the grounds of a noncompliance of the court's order in fixing the number of jurymen to constitute the venire to try this case. There are innumerable decisions of the Supreme Court of this state, covering a period of many years, to the effect that where there appears a duplication of a juror's name on the venire to try a capital case, thus reducing the number of jurors fixed by the order of court, the venire must be quashed upon proper motion. In other words, these cases hold, where it appears that the name of one (or more) juror is duplicated, appearing in one place as a regular juror, and in another as of those specially drawn for the trial, it is error which will justify quashing the venire. However, this rule no longer prevails. Evans v. State, 209 Ala. 563, 566, 96 So. 923, 925. In this case the Supreme Court said:

"The trial court did not commit reversible error in putting the defendant on trial by the venire drawn, notwithstanding the duplication on the list of the name of Jas. A. Mitchell. This error doubtless occurred in filling the box, and, notwithstanding the venire was one name short, it contained 49 more names than the minimum number fixed by law, and from aught appearing 30 or more appeared, and it was not necessary to augment the number unless reduced below 30. The authorities relied upon in the opinion of Thomas, J., except perhaps the Jackson Case [171 Ala. 38, 55 So. 118], were under older jury laws; but the law of 1909 and 1919 indicated a legislative desire to avoid reversals by errors of this character should it appear that there was no error in the order of the court, and that the defendant was tried by what constituted a lawful venire, that is, had a venire of 50 or over in the first instance, and the list from which he was to strike contained 30 or more names. Courts are not only intended to administer justice, but should be also conducted for practical purposes, and to our mind it would be a legal travesty to reverse this case solely upon the ground that the name of Mitchell was duplicated, notwithstanding the venire contained 99 names, and the defendant had every means of securing a fair and impartial jury."

This recent decision (quoted) is conclusive of the insistence here made that the court erred in overruling the defendant's motion to quash the venire which was based upon the grounds that the names of jurors Robert Hurst, and W. Knouff Parker each appeared twice upon the venire thus reducing the number of jurors on the venire from which the jury was to be selected to 98 jurors and the order of the court fixed the number at 100 jurors. Under the Evans Case, supra, there was no error in the court's rulings in this connection, and the insistence of appellant cannot be sustained.

Some of the decisions affected, on this point, by the Evans Case, supra, are as follows: Roberts v. State, 68 Ala. 515; Darby v. State, 92 Ala. 9, 9 So. 429; McQueen v. State, 94 Ala. 50, 10 So. 433; Wilkins v. State, 112 Ala. 55, 21 So. 56; Hall v. State, 130 Ala. 45, 30 So. 422; Noel v. State, 161 Ala. 25, 49 So. 824; Zininam v. State, 186 Ala. 9, 65 So. 56. This notation is made for the the benefit of the bench and bar of the state.

The court's ruling in allowing in evidence the shirt worn by deceased at the time he was shot and killed by this appellant was without error. The shirt had been properly identified, a portion thereof (the collar) was perforated by the bullets which took the life of Pruitt, and thus under nearly all of the decisions was admissible in evidence. Certainly so under the rule laid down in Moye et al. v. State (Ala. App.) 117 So. 153. Certiorari denied Id., 217 Ala. 561, 117 So. 154. But see Hyche v. State, 22 Ala. App. 176, 113 So. 644.

The remaining question on this appeal relates to the ruling of the court which, in effect, held, as a matter of law, that this appellant at the time of the killing complained of was not within his dwelling house, nor the curtilage thereof. The defendant set up self-defense, but contended that he was under no duty to retreat and that he was within the curtilage of his dwelling house at the time of the fatal difficulty. The court charged the jury that the duty to retreat was upon the defendant in order to sustain his plea of self-defense. We are of the opinion that under the undisputed evidence in this case the lower court correctly ruled in this connection. The undisputed evidence shows that this defendant was a...