Ramsey v. State, 7 Div. 688.

• Decision Date: 24 June 1930
• Docket Number: 7 Div. 688.
• Parties: RAMSEY v. STATE.
• Court: Alabama Court of Appeals

130 So. 674

24 Ala.App. 83

RAMSEY v. STATE.

7 Div. 688.

Court of Appeals of Alabama

June 24, 1930

Rehearing Denied Oct. 7, 1930.

Appeal from Circuit Court, St. Clair County; O. A. Steele, Judge.

Alfred Ramsey was convicted of distilling, and he appeals.

Affirmed.

E. O McCord & Son, of Gadsden, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

BRICKEN P.J.

This appellant was arraigned upon an indictment, preferred against him by the grand jury, containing two counts. The first count charged the unlawful possession of a still to be used for the purpose of manufacturing prohibited liquors or beverages; and the second count charged that he did distill, make, or manufacture alcoholic, spirituous, malted, or mixed liquors or beverages, a part of which was alcohol, etc. To this indictment the defendant interposed a plea of not guilty. At the conclusion of the evidence, it appears from the record by mutual agreement upon suggestion of the trial judge, count 1 of the indictment was eliminated and the case was given to the jury on count 2 only, which, as stated charged distilling, etc.

The record shows the following occurrence as to the selection of the jury:

"The Court qualified the venire in said cause, and the Clerk having made copies of the same distributed one to the Solicitor of the Circuit and one to the Counsel of Defendant, and thereupon said Counsel proceeded to strike the jury as provided by law. After the strike had been completed and a jury of twelve men selected, on comparison with the jury lists it was ascertained that State's Jury list remaining on list to try the case did not agree with the list kept by the Clerk and the list kept by Counsel for the Defendant. Upon examination of the three lists it was ascertained that the three separate sheets consisted of an original and two carbon sheets, all made at the same time, and that in making the jury list, in some manner the list furnished the State had the jury numbers on it that did not correspond with the other two lists. Whereupon the Court ordered the Jury to be selected again. Defendant then and there objected to being put on this jury list to strike on the ground that he had already struck the jury from top to bottom from this venire, that the State was acquainted with the objection to any juror, and defendant did not think he should be put on the jury again for another strike. Whereupon the court replied: 'I don't think they have any advantage, you are acquainted with theirs too.'

"Thereupon Counsel for the Defendant replied: 'Yes, sir, but we have now been put upon the Jury and we have exercised what the law gives us a right to, of striking. Now we object to being again put on this same jury to strike from.'

"Thereupon the Court made the following order, to-wit:

"And it appearing to the Court that a jury had been struck by the State and by the Defendant from a list prepared by the Clerk, and that on calling the Jury it was discovered that confusion existed in the two lists, whereupon the Court directed the Clerk to make a new list, including the names of all jurors who were on the former list, which the Clerk did.

"The defendant objected to being required to strike again from the list containing a list of all the jurors that were on the original list, out of which the confusion grew, and the Court overruling the objection, and to this ruling of the Court defendant then and there duly excepted."

Appellant here appears to place much stress on this point of decision and strenuously insists that reversible error intervened as a result of the court's action in this connection. In this we cannot agree. We are unable to accord to the incident, and ruling complained of, the serious import insisted upon by appellant. By express terms of the statute, section 8636, Code 1923, the provisions...