Milligan v. State

• Decision Date: 22 June 1922
• Docket Number: 6 Div. 482.
• Citation: 208 Ala. 223,94 So. 169
• Parties: MILLIGAN v. STATE.
• Court: Alabama Supreme Court

94 So. 169

208 Ala. 223

MILLIGAN v. STATE.

6 Div. 482.

Supreme Court of Alabama

June 22, 1922

Rehearing Denied Oct. 12, 1922.

Appeal from Circuit Court, Jefferson County; William E. Fort, Judge.

Charlie Milligan was convicted of murder in the second degree, and he appeals. Affirmed.

John W Altman and Jerome Edmundson, both of Birmingham, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

GARDNER J.

Appellant was convicted of murder in the second degree, and appeals.

The motion to quash the special venire was properly overruled. The judgment of the court, as appears on the second page of the transcript, shows an order in full compliance with the statute in regard to such special venire. The defendant sought to establish the invalidity of this order by showing that the order for the special venire was drawn when only one of the judges of the criminal division of the Jefferson circuit court was present, the other judge being the one elected to preside over the equity division of said court and that the order was not reduced to writing prior to the drawing of the jury.

Conceding without deciding, that the judgment entry could be so impeached, we are of the opinion that the objections raised are without merit. One of the judges of the criminal division, who presided upon the trial of this cause, was the judge who made the order for the special venire, and he alone, under the authority of Act of 1919, p. 260, had the right to so order; said act (section 1) providing that such special venire "shall be drawn by the judge or judges of the criminal division of such court, or by the judge or judges who may at the time be presiding over the criminal divisions of such court." In addition to this, the Legislature by Act of 1915, p. 809, expressly provided that these judges should have equal power, authority, and jurisdiction, and the presiding judge may designate any of the judges from time to time to sit in any division other than that in which he sits as of course, and he may assign to any of them the duty of drawing and impaneling the juries while the presiding judge is otherwise engaged. In the absence of anything to the contrary, it will be assumed that this was done, and in any event therefore it appears that the mere fact the judge of the equity division of the court was present at the time and assisting in drawing the jury is a matter of no material consequence. Upon the hearing of the motion evidence of the assistant circuit clerk was heard, which discloses that just before the special venire was drawn the presiding judge made the order therefor [transcript page 78], and signed an order on that day prepared for that purpose by the clerk or his assistant. This order was entered formally on the minutes four or five days thereafter. We see nothing in this action of the court of which appellant can complain. All of this was duly made a part of the record of the court; and what was said in Spicer v. State, 69 Ala. 159, in no manner militates against the conclusion here reached.

The jurors who appeared in the cause were duly qualified, but the court permitted counsel for defendant to separately examined a large number of the jurors who had previously answered satisfactorily the general questions by the court, particularly as to whether or not they were householders or freeholders, as required by law for qualification. After counsel for the defendant had concluded, special counsel for the state was permitted to likewise examine the jurors upon this particular qualification, and when this was concluded defendant's counsel stated there was one gentleman on the jury he wished to examine; that his failure to examine him was an oversight, and the juror was then examined. After the jury had been struck and seated in the jury box, one of the jurors (named Edge) expressed to the court some doubt as to whether or not he met that particular qualification, but he did not know that he was not qualified and had answered the questions conscientiously. Defendant's counsel then wanted to reopen the examination as to the qualification of this juror upon this ground, to which the court replied, in substance, that he had spent enough time qualifying the jurors, and he declined to open it up at that time, stating to counsel that he had given ample opportunity and had examined the jurors specially, and did not want to again reopen that question, to which action of the court the defendant reserved exceptions. As previously noted, the jurors had been duly qualified by the court on the first examination, and had been separately examined by counsel for the state and for the defendant, and ample opportunity given to that end. It was a matter resting largely within the discretion of the court, and his declination to further reopen the question under the circumstances here disclosed was free from error. Hawes v. State, 88 Ala. 37, 7 So. 302.

As one of the regular jurors drawn and summoned for that week of court appeared the name of G. Smolian, and Joseph Smolian answered thereto. Smolian's testimony clearly discloses that he was the identical juror intended to be summoned, but his name was Joseph Smolian, and not "G" Smolian, and that there was a mistake in the initial of his name. The Act of 1919, p. 1039, expressly provides that any mistake in the name of any juror drawn or summoned shall not be sufficient to quash the venire or continue the cause. The motion to quash upon this ground was therefore properly overruled.

The variance between the spelling of the name of the deceased in the original indictment and in the copy served on the defendant was slight and immaterial, and so clearly presents no reversible error as to require no separate discussion. Rigsby v. State, 152 Ala. 9, 44 So. 608.

In the motion of the defendant for a continuance of the cause it was made to appear that defendant was arrested on the morning of April 3d, and was denied an opportunity, by those having him in custody, of employing counsel until April 6th. The authorities cited by counsel for appellant fully sustain the view that this was violative of his constitutional right. State of Okl. ex rel. v. Davis, 9 Okl. Cr. 94, 130 P. 962, 44 L.R.A. (N. S.) 1083; State v. Moore, 61 Kan. 732, 60 P. 748; Hamilton v. State, 68 Tex. Cr. R. 419, 153 S.W. 331.

The matter of continuance, however, was a question which presented itself to the sound discretion of the trial court. The defendant had counsel on April 6th, and was indicted on the 15th thereafter, duly arraigned on the following day, and his trial set for the 25th of April. On the 25th his trial was postponed for the 27th. All of this fully discloses ample opportunity was given counsel for the preparation of the defendant's cause. The case of State v. Moore, supra, rests upon an entirely different state of facts.

On April 18th the defendant filed a motion to the effect that at the time of his arrest there was also arrested W. B. Neville and Dan Lattimer, and two days subsequent thereto one Lloyd Little, each charged with the same offense of having murdered the same person; that Lattimer and Little, after having been confined in jail until April 8th, were taken therefrom, and their location is unknown to the defendant; that they have not been subp naed by the state, and that defendant desires to summon them, and asks that the solicitor and the sheriff be required to furnish their address. On April 20th the court heard the evidence, and reached the conclusion that these witnesses were not in the custody of the sheriff or the solicitor, but declined to require the solicitor to furnish their address, and the motion was overruled; but the sheriff was ordered to use diligence to have these witnesses in court on April 25th-the day set for trial. The court stated to counsel for the defendant, "If those witnesses are not here, the case will not be tried," and that opportunity would be given for the defendant to consult with them. The witnesses were produced at the trial, and nothing appears in the record to indicate that counsel for the...