Mizell v. State
Citation | 184 Ala. 16,63 So. 1000 |
Parties | MIZELL v. STATE. |
Decision Date | 30 June 1913 |
Court | Alabama Supreme Court |
Rehearing Denied Dec. 18, 1913
Appeal from Circuit Court, Geneva County; H.A. Pearce, Judge.
Frank J. Mizell was convicted of murder in the second degree and sentenced to the penitentiary for 25 years, and he appeals. Reversed and remanded.
The defendant pleaded in abatement in pleas 1 and 2 the facts set forth in the opinion. The third plea was that the grand jury was illegally drawn in that the presiding judge of the circuit did not draw the jury, and the record does not disclose by whom said jury was drawn or when drawn, and does not disclose any authority for the summoning of said jury. The fifth plea sets up that Hon. R.H. Parks was the solicitor of the circuit; was not connected with defendant in any way that there was no vacancy in the office of solicitor; and that the court was without authority to appoint Hon. Albert E. Pace as special solicitor, but that he was appointed said solicitor and served with the grand jury finding the indictment. The motion to quash the venire was based: (1) On the fact that they were drawn by the judge in the clerk's office, and not in the courtroom or room where the court was held; (2) because during the first week, when the jury was drawn for the second week, certain named jurors then drawn were excused by the court from further attendance, and that the judge had time and opportunity before drawing the special venire to restore the names of said persons to the jury box but did not do so, and that they were not in the jury box at the time the special venire was drawn, and other matters not necessary to be set out.
The solicitor asked the witness Faulk: "Did you ever hear any one say that deceased had the reputation of being a man who would slip up behind a man and take advantage of him?" The witness answered: On motion of the solicitor, the court excluded the answer of the witness.
The following charges were refused to defendant:
Charges 3, 4, 5, and 6 were relevant to a dormant disease of the mental faculty which appeared only under grief, fear, excitement, and its development resulted in the killing, having been brought about by statements of deceased.
Espy & Farmer, of Dothan, W.O. Mulkey and C.D. Carmichael, both of Geneva, and W.L. Parks, of Andalusia, for appellant.
R.C. Brickell, Atty. Gen., W.L. Martin, Asst. Atty. Gen., and Hamilton & Crumpton and D.M. Powell, all of Evergreen, for the State.
Section 15 of the present jury law (Acts 1909 [Sp.Sess.] p. 310) among other things, provides that if for any reason "the judge of the court fails to draw the juries as required in this section before the twenty days above mentioned the clerk of such court shall notify the judge of any court of record, except probate judges, residing nearest to the place of holding the court, and it shall be his duty upon receiving such notification to immediately draw the juries for the next term of the...
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...with these instructions. Generally, any error in the admission of evidence is cured by its exclusion. See Mizell v. State, 184 Ala. 16, 24, 63 So. 1000, 1003 (1913). " 'There is a prima facia presumption against error where the trial judge immediately charges the jury to disregard improper ......
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...472 So.2d 1106 (Ala.1985), cert. denied, Kennedy v. Alabama, 474 U.S. 975, 106 S.Ct. 340, 88 L.Ed.2d 325 (1985); Mizell v. State, 184 Ala. 16, 63 So. 1000, 1003 (1913) ("[I]f there was error in admitting the evidence ..., it was cured by the exclusion of same."). In some cases, a cautionary......
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Brown v. State, 6 Div. 238
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