Rush v. State

• Decision Date: 13 April 1950
• Docket Number: 8 Div. 450
• Citation: 253 Ala. 537,45 So.2d 761
• Parties: RUSH v. STATE.
• Court: Alabama Supreme Court

Page 761

45 So.2d 761

253 Ala. 537

RUSH v. STATE.

8 Div. 450.

Supreme Court of Alabama.

April 13, 1950.

Starnes & Starnes, of Guntersville, for appellant.

A. A. Carmichael, Atty. Gen., and Wm. N. McQueen, Asst. Atty. Gen., for the State.

STAKELY, Justice.

C. C. Rush (appellant) was indicted for murder in the first degree. Trial of the case resulted in a conviction of murder in the second degree and a sentence of 35 years in the penitentiary. This appeal is from the conviction and sentence.

On May 20, 1947, C. C. Rush, his son Wesley Rush, his son-in-law Odis Rainwater, W. M. Rodgers and W. M. Rodgers, Jr. were plowing and sowing on the Rush farm which adjoins the farm of E. E. Ridgeway in Marshall County, Alabama. Two shots were heard apparently coming from the thicket on the boundary line between the two farms. Tendencies of the evidence show that bullets passed near Odis Rainwater, Wesley Rush and W. M. Rodgers, Jr.

A. P. Ridgeway, the deceased, was living at the home of his father E. E. Ridgeway. There had been a dispute over the boundary line between the two farms about two months prior to the present difficulty and some of the stakes showing the boundary line as fixed by the surveyor were still standing. Upon hearing the shots Wesley Rush ran to his father, who was about a hundred yards away, and told him that 'A. P. was over there shooting at me.' C. C. Rush thereupon stopped his mules, left the field in his jeep, went to his house about half a mile away, got his rifle and shortly returned. He first parked his jeep in the field and then proceeded toward the boundary between the two places.

A. P. Ridgeway, the deceased, was sitting on the front porch of his father's home along with his father, his mother, Charley Hilburn and the latter's daughter Vergie Hilburn. Tendencies of the evidence showed that when he saw C. C. Rush approaching he left the porch and went to meet him despite the efforts of his father and mother to deter him. In fact his mother, an elderly woman, went along with him and persisted in trying to stop him. Tendencies of the evidence showed that appellant had cursed the deceased and told him to come out there. According to tendencies of the evidence deceased stated in substance, as he left the porch, that the appellant would do him no harm. Tendencies of the evidence further showed that when the appellant was about 30 to 40 yards from the deceased, appellant standing on his property and deceased on the property of his father, appellant fired at the deceased missing him. Appellant then raised his rifle again, took aim and this time hit A. P. Ridgeway, who dropped dead in his tracks.

Tendencies of the evidence showed that deceased went down to meet appellant dressed only in a shirt and his working pants and was unarmed. Tendencies of the evidence further showed that a pistol belonging to the deceased was found after the shooting in a shed at the rear of the home of E. E. Ridgeway and tendencies of the evidence further showed that Charley Hilburn was seen to approach the body of deceased, lean down over the body and then proceed toward the shed. Tendencies of the evidence further showed that no one approached the body of the deceased until the officers arrived after the killing. The officers testified that there were no tracks around the body of the deceased and no weapon found on him.

I. On October 1, 1947 an order was entered by the court for a special term of court to be held October 27, 1947 and on October 10, 1947 the judge drew the general venire for the special term from which the grand jury and petit juries for the special term were later drawn and impaneled.

By plea in abatement the appellant raised the defense that the venire from which the names of the grand jurors were drawn and impaneled was not drawn from the jury box in open court but was drawn behind locked doors with only the Judge, the Hon. J. S. Stone, the Sheriff and the Clerk of the Court being present. It is alleged in the plea in substance that members of the public and members of the bar were denied or refused admittance to the office of the circuit clerk while the venire was being drawn behind locked doors as aforesaid.

Section 285, Title 15, Code of 1940 provides as follows. 'No objection can be taken to an indictment, by plea in abatement or otherwise, on the ground that any member of the grand jury was not legally qualified, or that the grand jurors were not legally drawn or summoned, or on any other ground going to the formation of the grand jury, except that the jurors were not drawn in the presence of the officers designated by law; and neither this objection nor any other can be taken to the formation of a special grand jury summoned by the direction of the court.'

It is insisted that by reason of the provisions of the foregoing statute the matter set forth in the foregoing plea is not available for attack against the venire and the indictment. It is true that the statute limits objection to an indictment to the sole ground that the jurors were not drawn in the presence of the officers designated by law. But this court has pointed out that this statute is designed to prevent quashing of the indictment for mere irregularities and to obviate resulting delays in administration of justice. Vernon v. State, 245 Ala. 633, 18 So.2d 388. And further that the statute was not designed to nullify matters deemed essential to the established concept of trial by jury which offend basic principles of due process. Smith v. State, 34 Ala. App. 45, 38 So. 2d 341, certiorari denied 251 Ala. 559, 38 So.2d 347; Spooney v. State, 217 Ala. 219, 115 So. 308. It is, therefore, necessary for us to consider the effect of the drawing of the venire behind locked doors as alleged in the plea.

Section 30, Title 30, Code of 1940 provides in effect that the names of the jurors shall be drawn by the judge from the jury box in open court. This court has had occasion to define the meaning of the words 'open court' a number of times and it is clear that open court means when the court is open for the transaction of the business of the court, that is 'the time when the court can properly exercise its functions.' Ex parte Branch, 63 Ala. 383; Zaner v. Thrower, 203 Ala. 650, 84 So. 820; Letcher v. State, 159 Ala. 49, 48 So. 805, 17 Ann. Cas. 716. But we think that the expression 'open court' means that the court must not only be open for the transaction of business but also means that the court must be sitting openly, so that all persons who conduct themselves in an orderly manner may freely see and hear the proceedings in the court. Vol. 29 Words and Phrases, Perm. Ed., page 523. This does not mean that the judge must necessarily be acting in the court room. The office of the clerk is a part of the quarters provided for the court. Ex parte Morris, 252 Ala. 551, 42 So.2d 17. But we think there can be no objection that the judge in the presence of the sheriff and the clerk was drawing names of the jurors from the jury box in the office of the clerk. If the drawing was behind locked doors, this would not comport with the fairness and openness which should characterize the transaction of court business. The evident purpose of the requirement that the general venire be drawn in open court is to remove any idea that the jurors have been selected for some special case and to remove this important arm of the court from any suspicion of bias or prejudice. We take it for granted that proceedings of a star chamber character behind locked doors would tend not only to create suspicion but bring the court into disrepute. Doss v. State, 220 Ala. 30, 123 So. 231, 68 A.L.R. 712. The provision of § 30, Title 30, Code of 1940 that the names of the jurors shall be drawn by the judge from the jury box in open court is mandatory and must be obeyed. Zininam v. State, 186 Ala. 9, 65 So. 56.

The trial judge set the case down for hearing on the issues made by the foregoing plea. We have read the evidence with the greatest care. The proof shows that on orders from the judge the jury box was secured by the sheriff from the place where it is kept and carried to the office of the clerk and in the office of the clerk, the Judge, Hon. J. S. Stone, in the presence of the Circuit Clerk and the Sheriff proceeded to draw the names from the jury box. It is undisputed that when the drawing began the door of the office of the clerk was open and besides the three officers others were present and if at any time the door became closed, it was without the intention of any of these officers. In fact we wish to make it abundantly clear that neither counsel nor any one else imputes any evil or fraudulent intent to any of these officers. On the contrary it is conceded that each and all of them are held in the highest regard. The proof shows that the door was equipped with a spring lock and that if it were pulled to it would become locked. It may be that during the drawing of the names from the jury box some one in leaving the room may have pulled the door to and caused it to become locked. The proof certainly shows that during the time of the drawing others were free to enter and leave the room and did so. We are not satisfied from the evidence that the door did become locked, but if it did, it was a mere inadvertence and certainly no one who wished to be present when the drawing was made in order to observe the proceedings, was precluded from attending the drawing. The witnesses testified orally before Hon. Reuben Wright who presided as Judge in the trial of the case. He resolved the issues made by the plea in favor of the state. We see no reason to disturb his findings which we take as presumptively correct.

II. Various other defects in procedure are pointed out as grounds for quashing the indictment which may be enumerated as follows. (a) Twenty-one members were excused from jury duty without being examined under oath on voir dire as to their excuses or exemptions...