Noel v. State

• Decision Date: 01 June 1909
• Citation: 161 Ala. 25,49 So. 824
• Parties: NOEL v. STATE.
• Court: Alabama Supreme Court

49 So. 824

161 Ala. 25

NOEL v. STATE.

Supreme Court of Alabama

June 1, 1909

Appeal from Circuit Court, Marshall County; W. W. Haralson, Judge.

W. L Noel was convicted of murder, and appeals. Affirmed.

John A Lusk and Street & Isbell, for appellant.

Alexander M. Garber, Atty. Gen., and Thomas W. Martin, Asst. Atty Gen., for the State.

SAYRE J.

Some days after arraignment, plea, and special venire drawn, but before a copy of the venire had been served on him, the defendant being present in court with his counsel, the solicitor moved the court to quash the special venire on the ground that the name of W. P. Jordan appeared on both the special venire and on the venire of regular jurors summoned for the week in which the case had been set for trial. The court took evidence which went to establish the fact alleged in the motion, and that there was only one W. P. Jordan in the county. Thereupon the court, calling upon the defendant to know what he had to say to the motion, defendant, through counsel, replied: "We know nothing, we say nothing, we consent to nothing, we waive nothing, and we object to everything." The court overruled the motion to quash upon the stated ground that the defendant objected. On the day set for the trial, and before announcing his readiness to enter upon the trial, the defendant moved to quash the venire upon the identical ground on which the solicitor had put his previous motion, and none other. The court overruled the motion, and defendant excepted.

The venire was unquestionably subject to a motion to quash. Darby v. State, 92 Ala. 9, 9 So. 429; Roberts v. State, 68 Ala. 515; McQueen v. State, 94 Ala. 50, 10 So. 433. It was in fact the duty of the court to avoid its issue and service upon the defendant. As was pointed out in Wilkins v. State, 112 Ala. 55, 21 So. 56, the proceedings were yet in fieri and under the complete control of the court, and it was the duty of the court to make a timely correction of errors which may have intervened, and which, if persisted in, would render them nugatory. It will be conceded that defendant's motion to quash, if unaffected by his previous objection to the solicitor's motion, was timely. But had he by his objection estopped himself to make the identical motion at a later time? Without venturing to catalogue those rights which may be waived, it is safe to assert that there are rights and privileges which may be waived, though secured to the accused by common law and Constitution. Martin v. State, 62 Ala. 240. Thus, in the recent case of Stone v. State (decided at the present term) 49 So. 823, the defendant, after a jury had been impaneled, sworn, and accepted by the state and the defendant, procured the court by motion to quash the venire for the fault which appears in the case at bar. Upon a venire de novo, there was a plea of former jeopardy. It was held, on the authority of State v. McFarland, 121 Ala. 45, 25 So. 625, and cases there cited, that the defendant had estopped himself to plead his former jeopardy. The case in hand was properly before the court for ruling on the motion to quash, and the defendant was properly in court. His language uncovered a purpose to object and at the same time reserve whatever advantage might grow out of a withholding of his objection. On the proof it was the duty of the court to quash the venire. The defendant could not equivocate with the court. Whatever other meaning his language was intended to convey, the court was permitted to infer that he did object to an allowance of the motion. The court having interpreted the defendant's language to mean an objection--as it did--and having given the defendant to understand clearly that his rights were being disposed of on that theory, the defendant could not at a later date, no change in his situation having intervened to his hurt in the meantime, be heard to invoke the action of the court to do the identical thing to which he had objected and on the identical ground urged in favor of the first motion. The defendant argues that he did not then know who would constitute the venire, and that he ought not to have been called upon to elect until he had an opportunity to judge between the respective advantages and disadvantages of the two courses open to him. But the motion asserted, and the proof established, the fact and the only fact upon which the defendant based his subsequent motion. There was no change in the situation. The court acted in accordance with the intention of the statute, and there was no error in its ruling.

While the jury was being drawn, the name "H. N. Oliver" was drawn from the box and called. One Oliver appeared and testified that his name was Henry Randolph Oliver. The juror also testified that there was no other Henry Oliver in the county, nor any H. N. Oliver, and that he signed his name H. R. Oliver. The defendant objected to the juror on the ground that there was a mistake in the name. In Kimbrell v. State, 130 Ala. 40, 30 So. 454, and Martin v. State, 144 Ala. 8, 40 So. 275, it was held that, where a juror was summoned by initials only, a variation in the middle initial did not constitute a mistake in name within the meaning of the statute, which requires the names of such persons to be discarded and others forthwith summoned to supply their places. In the last named of these cases, however, the juror had been summoned by his first initial and middle name, and upon this fact it was distinguished from the rule said to apply in cases where initials only are used. Whatever may be said as to the soundness of the distinction thus taken, the statute has been re-enacted since the date of those decisions, and they must be accepted as the settled law of such cases.

Several persons whose names appeared on the special venire as jurors to be summoned were returned as not found. No bad faith or lack of diligence was charged against the sheriff, nor any motion made to quash the venire on either ground. It was shown to the court that there were persons, in the several precincts where the persons named in the venire were designated as residing, with names of such similarity, though different in some respects, as to suggest that they were the persons intended by the venire, and upon this basis the defendant put a motion in each case, as these names were drawn, that the court discard them and direct others to be summoned to supply their places. But these persons had not been summoned, and to them the statute had no application. Davis v. State, 126 Ala. 44, 28 So. 617.

The diagram of the place in the town of Boaz where the body of the deceased was found, and its surroundings, was properly admitted in evidence, the witness who had prepared it having testified to its substantial correctness, notwithstanding his statement on cross-examination that he had not attempted to make it show exact relative distances. It doubtless shed light upon the testimony of the witnesses, and its infirmities were matters for the consideration of the jury. Burton v. State, 115 Ala. 1, 22 So. 585, s. c. 107 Ala. 108, 18 So. 284. Nor was there error in permitting other witnesses to refer to it.

The state's contention, supported in tendencies of the evidence, was that defendant had gone to the east side of the street and was there lying in wait for the deceased. On the defendant's cross-examination of the state's witness D. A. Morton, it was developed that the east side of the street at the point where the killing occurred was not much frequented by pedestrians, and apparently as if to sustain the statement, and presumably in response to questions put to him, the witness mentioned the names of several persons living in Boaz whom he had not seen on that side of...