Spooney v. State, 4 Div. 358

• Court: Supreme Court of Alabama
• Writing for the Court: BROWN, J.
• Citation: 217 Ala. 219,115 So. 308
• Docket Number: 4 Div. 358
• Decision Date: 26 January 1928
• Parties: SPOONEY v. STATE.

115 So. 308

217 Ala. 219

SPOONEY
v.
STATE.

4 Div. 358

Supreme Court of Alabama

January 26, 1928

Appeal from Circuit Court, Dale County; J.S. Williams, Judge.

Columbus Spooney was convicted of murder in the first degree, and he appeals. Reversed and remanded. [115 So. 310]

C.O. Stokes, of Ozark, and Farmer, Merrill & Farmer, of Dothan, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

BROWN, J.

The appellant was indicted, tried, and convicted of murder in the first degree and sentenced to death.

After due arraignment, an order was entered by the court fixing the date of defendant's trial and for the summoning of a special jury for the trial. The order of the court fixing the number and prescribing the constituents of the venire was in these words:

"It is further ordered that the venire for the trial of this case shall be 80 in number, consisting of 35 jurors drawn for the regular juries of this week, together with 45 drawn specially from the jury box of this county by the trial judge in open court in the presence of the defendant, and that summons be served on all jurors composing the said venire to appear and be present for the trial of this case at the time above named." (Italics supplied.)

Motion was made to quash the special venire, and on the hearing of the motion it was admitted that the names of 48 persons were drawn to serve on the regular juries for the week this case was set for trial, and that the names of 13 of such jurors so drawn were omitted from the list served on the defendant, 6 of whom had not been summoned to serve as jurors on the regular venire, and the other 7, who had been so served, had been excused "for illness and various reasons" when the regular juries were impaneled for the week, and before the defendant's case was set for trial.

The provisions of the statute, notwithstanding an effort at legislative interpretation to the contrary, requiring the trial court in capital cases to "make an order commanding the sheriff to summon not less than 50 nor more than 100 persons, including those drawn on the regular juries for the week set for the trial of the case, and shall then in open court draw from the jury box the number of names required, with the regular jurors drawn for the week, set for the trial, to make the number named in the order, and shall cause an order to be issued to the sheriff to summon all persons therein named to appear in court on the day set for the trial of the defendant, and must cause a list of the names of all the jurors drawn for the week in which the trial is set, and those drawn as provided in this section, together with a copy of the indictment, to be forthwith served on the defendant, by the sheriff, and the defendant shall not be entitled to any other or further notice of the jurors drawn for his trial nor of the charge or indictment upon which he is to be tried" (Code 1923, § 8644), have uniformly been held to be mandatory, and many of these holdings were pronounced prior to the adoption of the statute into the Code of 1923, into which it was carried forward without change ( Zininam v. State, 186 Ala. 12, 65 So. 56; Waldrop v. State, 185 Ala. 23, 64 So. 80; Carmack v. State, 191 Ala. 1, 67 So. 989; Tennison v. State, 188 Ala. 90, 66 So. 112; Edgar v. State, 183 Ala. 36, 62 So. 800), with the result that the statute now speaks in the light of its previous interpretation which has become a part of it by legislative adoption (Donahoo Horse & Mule Co. v. Durick, 193 Ala. 456, 69 So. 545; Brown, Treas., v. Gay-Padgett Hdwe. Co., 186 Ala. 561, 65 So. 333).

In one of the cases cited above, decided before the adoption of the statute as a part of the present Code of law, it was observed that:

"The power of the Legislature to prescribe the interpretation of its own language cannot be doubted. But it has been often noted that interpretation clauses in statutes embarrass rather than assist the courts in their decisions (Endlich, Interp. of Stats. § 365), and that has been found to be the case with the act in question. When the Legislature in this act, along with its general prescription for interpretation, provided specific regulations, which must have been deemed essential to the proper conduct of trials by jury, and which, if they are to have any operation at all must be made effectual according to the specific language of the act, it so provided that either such specific regulations must be accepted by the courts as mandatory, or the statute as to them must be held to be insensible and of no effect." Zininam v. State, supra

In the case just cited the provision of the statute, now section 8637 of the Code of 1923, that "no objection can be taken to any venire of jurors except for fraud in drawing or summoning the jurors," was construed to apply to clerical and ministerial mistakes in the preparation of the venire, not to a disregard of the specific mandatory provisions of the statute as to the court's order prescribing the constituents of

the special venire.

The right of trial by jury is fundamental in our jurisprudence, guaranteed by the Constitution (Const. 1901, §§ 6, 11), and, if this [115 So. 311] guaranty means anything at all, it is that the defendant is entitled to trial by a jury selected and impaneled as prescribed by the law of the land.

In this case the order of the court prescribing the constituent of the jury for defendant's trial ordered that 35 of the 48 names drawn on the regular juries for the week, together with those specially drawn, should constitute the venire for defendant's trial. Which 35 of the 48 names were to be included in the list is left to speculation. If the clerk of the court had placed on the list the 13 names omitted from the regular juries for the week, or any number of them, together with a sufficient number of those remaining to make 35, and the names specially drawn, and the sheriff had summoned these so listed, this would have been a literal compliance with the order. If it be assumed that the order referred to the names of the 35 jurors selected and impaneled on the regular juries for the week, still the order was a total disregard of one of the mandatory provisions of the statute, and was at best an arbitrary substitution by the court of such list for the names provided for by the statute.

In Walker v. State, 204 Ala. 474, 85 So. 787, wherein the trial court had inadvertently followed the provisions of the Act of August 31, 1909 (Acts Sp. Sess. 1909, p. 305), instead of the act as amended by that of September 29, 1919 (Acts 1919, p. 1039), with the result that the venire in that case was constituted of the names of the jurors drawn and summoned for the week in which the case was tried, instead of those drawn as required by the latter act and as now required by law (Code of 1923, § 8644), this court was unanimous in holding that error was committed, and by a bare majority that the error was without injury, for the reason, to quote from the opinion:

"The result of the court's action, though erroneous, was to secure to appellant a greater number (within 65) from which to select the jury for his trial than would have been the case had the court constituted the not summoned members of the regular juries a part of the special venire for appellant's trial."

The conclusion of the majority stated in that case, upon which it applies the doctrine of error without injury, assumes that the jurors drawn but not summoned, if summoned for the special service as required by the statute, would not appear for service, or that they would not be served in compliance with the order of the court. It requires but a moment's reflection to discover that this reasoning and assumption is wholly fallacious. The law requires that all of the jurors, including those drawn on the regular juries for the week the case is set for trial, and those specially drawn, be summoned to appear for service on the day set for the trial, and that the court so order. The presumption should...