Smith v. State

• Decision Date: 07 April 1903
• Citation: 34 So. 168,136 Ala. 1
• Parties: SMITH v. STATE.
• Court: Alabama Supreme Court

34 So. 168

136 Ala. 1

SMITH v. STATE.

Supreme Court of Alabama

April 7, 1903

Appeal from Circuit Court, Limestone County; Osceola Kyle, Judge.

Robert Smith was convicted of murder, and appeals. Affirmed.

The appellant in this case was jointly indicted with Frank Orr and Pink Botts for the murder of Robert Taylor by shooting him with a pistol. Frank Orr and Pink Botts had been separately drawn and convicted, and a severance was ordered as to the appellant, and he was tried separately, and was convicted of murder in the first degree, and sentenced to the penitentiary for life. The defendant was arraigned on September 29, 1902, on which day a special venire was drawn and the day of the week in which said special venire was drawn was stated as a day for the trial of the defendant. After the drawing of the special venire, which is recited in the minute entry of the court, the minute entry then continues as follows: "It is further ordered by the court that said special jurors so summoned and drawn together with the petit jurors drawn and impaneled for this week of the court, shall constitute the venire from which the jury to try this cause shall be drawn; and it appearing that the defendant is confined in the jail of Limestone county Alabama, it is further ordered by the court that the sheriff of this county shall serve a copy of the jury so drawn as above stated, together with a copy of the regular petit jurors organized and impaneled for this week of the court also a copy of the indictment," etc. The defendant moved the court to quash the venire in this case upon the following grounds: "(1) Because the order of the court is not in conformity with the statute. (2) Because, by order of the court made in this case, the sheriff was ordered to serve on the defendant Robert Smith a copy of the petit jury drawn and impaneled for the first week of this term of the court. (3) Because the list of jurors served on the defendant as constituting the venire in this case is not in accordance with the law. (4) Because the list of jurors served on defendant as constituting the venire in this case contains the names of talesmen summoned to supply a deficiency in the regular venire of petit jurors for the first week of this term of the court. (5) Because the list of jurors served on the defendant as constituting the venire in this case contains the names of O. B. Newby, R. N. Bullington, J. D. Barksdale, N. J. Tribble, and W. M. Barksdale, who were summoned as talesmen to complete the venire of petit jurors for the first week of this term of court. (6) Because, by order of the court made in this case, the sheriff was ordered to serve on the defendant a copy of the petit jury drawn and impaneled, as constituting a part of the venire in this case, and the list served on the defendant as a copy of the petit jury drawn and impaneled contains the names of five talesmen who were summoned to supply a deficiency in the regular venire of petit jurors for the first week of this term of court." It was agreed in open court that the facts set forth in this motion as to the talesmen were true, and it was there admitted that the list of the regular jury drawn and impaneled for the week had been served on the defendant one entire day before the day set for his trial, and that on said list were the names of the five jurors summoned as talesmen to complete the jury. The court overruled the motion to quash the venire, and to this ruling the defendant separately excepted. While the jury to try the case was being selected, the names of O. B. Newby, R. N. Bullington, J. D. Barksdale, N. J. Tribble, and W. M. Barksdale, who were summoned to supply a deficiency in the regular venire for the first week, were drawn from the box. In each case the defendant challenged each one of them for cause, upon the ground that they were on the list served on the defendant, contrary to the order of the court. The court overruled this motion, and the defendant duly excepted. The other facts of the case relating to the rulings of the trial court reviewed on the present appeal are sufficiently shown in the opinion.

H. C. Thach, for appellant.

Massey Wilson, Atty. Gen., for the State.

McCLELLAN C.J.

Under the facts disclosed in the transcript before us, the jurors O. B. Newby, R. N. Bullington, J. D. Barksdale, N. J. Tribble, and W. M. Barksdale belonged to, and in part constituted, the regular juries organized for the week, though they had not been drawn as jurors for that week, but were summoned at the time the juries were being organized to supply the places of persons who had been drawn, and for any reason had failed to appear, or been excused from attendance by the court. Code, § 5011; Brown v. State, 128 Ala. 12, 16, 29 So. 200. These persons were therefore constituents of the venire for the trial of the defendant, composed, as the statute requires, of the special jurors drawn under section 5004 of the Code, "together with the panel of petit jurors organized for the week"; the case having been set down and coming on for trial on a day of the week in which the order to that end was made. Code, § 5005; Brown v. State, supra. The names of these men as members of the regular juries for the week, and in that capacity going to make up the venire for this case, were placed on the list of jurors served on the defendant one entire day before the day set for the trial; and they were present at the trial for service as such jurors. The defendant, so far as these jurors are concerned--and there is no complaint as to others--had for his trial the jurors whom the statutes provide he should have. Moreover, these were among the jurors provided for his trial by the order of the court, for, while in the fore part of the court's order the regular jurors of which in part the special venire was to be composed are referred to as "the petit jurors drawn and impaneled for this...