Smith v. State

• Decision Date: 14 April 1910
• Citation: 166 Ala. 24,52 So. 396
• Parties: SMITH v. STATE.
• Court: Alabama Supreme Court

52 So. 396

166 Ala. 24

SMITH v. STATE.

Supreme Court of Alabama

April 14, 1910

Appeal from Circuit Court, Colbert County; C. P. Almon, Judge.

Will Smith, alias Jim Wallace, was convicted of homicide, and appeals.Reversed and remanded.

Almon &amp Andrews, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

EVANS J.

On the trial of this casethe court entered an order "that the 48 special jurors drawn for the trial of defendant, together with the jurors drawn and summoned for fourth week of the court, should constitute the venire from which the jury to try this case should be selected.The court further ordered that a copy of the indictment against defendant in this case, and a copy of said venire for the trial of his case, be served on defendant, or his attorney of record, one entire day before the day set for the trial of this case."This order was in accordance with the law as it was prior to the time that the Code of 1907 went into effect.The Code of 1907 went into effect on May 1, 1908, and the date of this order is October 15, 1908.The law as it is in the Code of 1907 was therefore, in effect at the time this order was made.Under its provisions, "when the day set for the trial is a day of a subsequent week of the term, the special jurors so drawn, together with the jurors drawn for such subsequent week, shall constitute such venire."Code 1907, § 7265.The order in this case was made on October 15th, and the case set for trial October 30, 1908, a day of a subsequent week.Several of the jurors drawn for said fourth week of the term were not summoned.We cannot, therefore, say that the error of the court in making the order containing the word "summoned" was without injury, as it was a further limitation upon the number of names to constitute the venire than the law directed.

The bill of exceptions in this case cannot be reviewed, for the reason that it was not presented to the presiding judge within 90 days from the day on which the judgment was entered.Section 6248 of the Code of 1907 reads as follows "The provisions of this Code relating to the time and manner of taking, signing, and establishing bills of exceptions in civil causes apply to criminal cases, so far as applicable."Section 3019 of said Code reads as follows "Bills of exceptions may be presented at any time within ninety days from the day on which the judgment is entered, and not afterwards; and all...