Rudolph v. State

Decision Date18 May 1911
Citation172 Ala. 379,55 So. 610
PartiesRUDOLPH v. STATE.
CourtAlabama Supreme Court

Appeal from Criminal Court, Jefferson County; S. L. Weaver, Judge.

Wiley Rudolph was convicted of murder, and he appeals. Affirmed.

T. A Harris, for appellant.

Robert C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen for the State.

SAYRE J.

Proceeding under section 32 of the act of August 31, 1909 (Acts Special Session 1909, p. 317), the trial court named 70 as the number to constitute the special venire; and the order proceeds "And it further appearing that 40 persons had been drawn on the regular juries for said week, the court thereupon in open court drew from the jury box as directed by law 30 names, being the number named in said order." The record, however, shows that 50 names--not 40, as stated in the order--had been drawn for the regular juries for the week in which the case was set for trial, and that 48 persons named in that venire had been summoned. The result was that the defendant was required to join in the selection of a jury from a list of 78 names, instead of from a list of 70, as fixed by the order of the court. This was plain error, and under the system of limited peremptory challenges allowed by the law as it was prior to the enactment of the statute to which we have referred would have been prejudicial to the defendant. But now, all persons subject to challenge for cause being eliminated by the court, the list of competent jurors is reduced to 12 by the state and the defendant alternately striking names, so that in the end the jurors selected for the trial of the cause are the 12 least objectionable to the defendant. No result more favorable to the defendant could have been secured, had the list contained names to the exact number of 70 as prescribed by the order. Section 6264 of the Code of 1907 provides that the judgment of conviction must not be reversed because of error in the record, when the court is satisfied that no injury resulted therefrom to the defendant, and we feel satisfied that the case shown by the record falls within the clear intent of that statute. The error was error without injury. See Will Smith v. State, 55 So. 449, recently decided by the Court of Appeals.

In our recent cases of Jackson v. State, 55 So. 118, and Harris v. State, 55 So. 609, we held that prejudicial and reversible error was committed in constituting the venire of persons drawn and summoned...

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6 cases
  • Whittle v. State
    • United States
    • Alabama Supreme Court
    • January 27, 1921
    ... ... This ... court has held that, if the defendant had the number of ... jurors provided in the order, even if there was error ... committed as indicated in cases cited below, it was not ... permitted to work a reversal. Walker v. State, 204 ... Ala. 47, 85 So. 787; Rudolph v. State, 172 Ala. 379, ... 55 So. 610; Powell v. State, 7 Ala.App. 17, 24, 25, ... 60 So. 967. However, we find no reversible error. In the ... instant case defendant was given the venire ordered by the ... court under the law, composed of the 72 persons embraced by ... the court's order. He ... ...
  • Kreutner v. State
    • United States
    • Alabama Court of Appeals
    • April 9, 1918
    ...motion. McMillan v. State, 75 So. 824; Garrett v. State, 97 Ala. 18, 14 So. 327; Smith v. State, 142 Ala. 14, 39 So. 329; Rudolph v. State, 172 Ala. 378, 55 So. 610. judgment of conviction and sentence was entered on the 24th day of October, 1917, and on this date the defendant caused an en......
  • Tyler v. State
    • United States
    • Alabama Supreme Court
    • December 1, 1921
    ... ... fact that the venire was fixed at 90 and the court drew 93 ... names was not an error of which the defendant can complain ... The number fixed as well as the number drawn were within the ... minimum and maximum as fixed by law. Walker v ... State, 204 Ala. 474, 85 So. 787; Rudolph v ... State, 172 Ala. 379, 55 So. 610 ... It is ... next insisted that after the return as to the jurors found ... and present and not excused the number was reduced to 55, and ... that the list from which the jury was selected contained only ... 42 names. In other words, that the ... ...
  • Walker v. State
    • United States
    • Alabama Supreme Court
    • May 14, 1920
    ...necessary to complete the number fixed in the order, viz. 65. This was error; but it was without prejudice to appellant. Rudolph v. State, 172 Ala. 379, 55 So. 610. number fixed in the order for a special venire was within the limits prescribed by the law. The result of the court's action, ......
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