Smallwood v. State

• Decision Date: 13 January 1938
• Docket Number: 5 Div. 257
• Citation: 235 Ala. 425,179 So. 217
• Parties: SMALLWOOD v. STATE.
• Court: Alabama Supreme Court

179 So. 217

235 Ala. 425

SMALLWOOD v. STATE.

5 Div. 257

Supreme Court of Alabama

January 13, 1938

Rehearing Denied Feb. 24, 1938

Appeal from Circuit Court, Chambers County; W.B. Bowling, Judge.

Jimmie Lee Smallwood was convicted of murder in the second degree and he appeals.

Reversed and remanded.

Jacob A. Walker, of Opelika, and R.C. Wallace, of LaFayette, for appellant.

A.A Carmichael, Atty. Gen., and Effie Crittenden, Asst. Atty Gen., for the State.

FOSTER Justice.

The defendant was indicted and put on trial for murder in the first degree. The court set the case for trial to be had on March 9, 1937, and ordered one hundred jurors to be summoned for his trial, including the jurors drawn and summoned for said week, of which there were fifty, and then drew fifty special veniremen, necessary to constitute the one hundred, including those drawn and summoned for that week. The sheriff was ordered to summon said persons so drawn to appear on the day set, and that a list of those drawn and summoned for the week and of those drawn in addition thereto be served on defendant.

This was not a compliance with section 8644, Code, which provides for those drawn for the week, not those summoned. Spooney v. State, 217 Ala. 219, 115 So. 308; Edwards v. State, 205 Ala. 160, 87 So. 179; Lewis v. State, 205 Ala. 657, 88 So. 831. But no objection was made to the venire on that account, so that it is not here available as error. Edwards v. State, supra; Lewis v. State, supra; Spooney v. State, supra; Stinson v. State, 223 Ala. 327, 135 So. 571.

This question is not urged on us, but it is our duty to examine the record for error. But it is a matter which may be and is waived in the circuit court by making no point on it. Attention is called to it, so that care may be taken to observe this requirement.

The bill of exceptions contains the following recital:

"In calling the names of the jurors duly summoned for the trial of said cause the name of Raymond Webb was called, by and under the direction of the court, his name being upon the venire that had been regularly drawn and a copy of which had been served upon the defendant, and the said Raymond Webb, not answering, the court stated that he had excused said Raymond Webb on the organization of the court the day before. Thereupon the defendant objected to going to trial without the presence of said juror. The court overruled said objection, stating: 'All right. He was regularly called and put under oath, voir dire, and was excused by the court for what the court thought was good and sufficient reason. Proceed with the call.'

"Thereupon the defendant duly and legally reserved an exception.

"The court proceeded with the trial of said cause in the absence of said Raymond Webb, and his name was not on the list of jurors that was submitted to the defendant and the State from which to select a jury."

This shows that objection was properly made and due exception taken to present the point to this court. Stinson v. State, supra; Irwin v. State, 220 Ala. 160, 124 So. 410.

The merits of this contention as a reversible error were...