Smith v. State

CourtAlabama Court of Appeals
Citation1 Ala.App. 140,55 So. 449
PartiesSMITH v. STATE.
Decision Date11 May 1911

55 So. 449

1 Ala.App. 140


Court of Appeals of Alabama

May 11, 1911

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

Will Smith was convicted of robbery, and he appeals. Affirmed.

Chappell & Ellis, for appellant.

Robert C. Brickell, Atty. Gen., and T. H. Seay Asst. Atty. Gen., for the State.

[1 Ala.App. 142] WALKER, P.J.

The trial court, by its order for a special jury in this case, 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 required with the regular jurors for said week to make the number named in the said order." The record, however, shows that 50 names--not 40 as stated in the order--were drawn for the regular juries for that week, and that 48 persons named in that venire were summoned. The result was that the venire for the jury in this case comprised 78 persons, instead of 70, the number fixed by the order of the court. The ruling in the recently decided case of Elijah Jackson v. State of Alabama, 55 So. 118, does not govern the result in this case, as in that case the trial court did not draw from the jury box the number of names required with the regular jurors drawn and summoned for the week set for the trial to make the number named in the order; while in this case eight more names were drawn than were required with the regular jurors drawn and summoned for that week to make the number named in the order. The defendant got something more than the venire fixed by the order of the court. The excess could not have worked to his injury. Its probable effect was that the list from which the jury to try the case was selected by the process of striking provided for by the statute (section 32, Acts Special Session 1909, p. 319) comprised a few more names than it would have comprised if only enough names had been drawn to make the required number. This could not have prejudiced the defendant. It simply enabled him to strike more names from that list until only 12 names remained thereon. It cannot be said [1 Ala.App. 143] that the defendant did not get the venire fixed by the order of the court and contemplated by the law. Under the law the effect of the order was to entitle him to have a venire of 70 persons, made up in the manner prescribed by the statute, from...

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3 cases
  • Clark v. State
    • United States
    • Alabama Court of Appeals
    • January 30, 1912
    ...67, 55 So. 1023; Odom v. State, 1 Ala. App. 68, 55 So. 546; Jobe v. State, 1 Ala. App. 112, 55 So. 430; Smith v. State, 1 Ala. App. 140, 55 So. 449; Mills v. State, 1 Ala. App. 76, 55 So. 331; Welch v. State, 1 Ala. App. 144, 56 So. 11. Reversed and remanded. ...
  • Goodwin v. State
    • United States
    • Alabama Court of Appeals
    • June 15, 1911
    ...even consented that the court or jury consider or weigh it as evidence in the case, either as it was originally or as it was after being [1 Ala.App. 140] changed. The prosecution was under no duty in reference to a document with which it had no connection, so far as the evidence disclosed; ......
  • Rudolph v. State
    • United States
    • Supreme Court of Alabama
    • May 18, 1911
    ...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 p......

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