Stinson v. State

• Citation: 135 So. 571,223 Ala. 327
• Decision Date: 28 May 1931
• Docket Number: 1 Div. 633.
• Parties: STINSON v. STATE.
• Court: Supreme Court of Alabama

135 So. 571

223 Ala. 327

STINSON v. STATE.

1 Div. 633.

Supreme Court of Alabama

May 28, 1931

Rehearing Denied June 25, 1931.

Appeal from Circuit Court, Monroe County; F. W. Hare, Judge.

Dan Stinson was convicted of murder in the second degree, and he appeals.

Affirmed.

C. L Hybart, of Monroeville, for appellant.

Thos E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty Gen., for the State.

BROWN J.

The appellant complains that the court, in advance of the day set for his trial, excused three of the jurors drawn and summoned for the trial, and, pertinent to this question, the bill of exceptions recites that:

"In calling the names of the jurors duly summoned for the trial of said cause the name of Mr. Thomas T. Ivey was called, by and under the direction of the Court, his name being upon the panel (venire) served upon the defendant, and Mr. Ivey not answering, the Court stated that it had excused Mr. Ivey. The defendant asked the Court on what grounds, and the Court stated to him, 'On grounds deemed sufficient by the Court,' to which action the defendant duly excepted.

"Under the direction of the Court the names of J. M. McNeal and W. S. Porter, who were jurors drawn and summoned to try the aforesaid case and whose names were on the panel (venire) served upon the defendant, and who did not answer on said call and who were not in Court, the Court stated that they had been excused for good and sufficient reasons by the Court, to which action the defendant separately and severally excepted. After these jurors were excused there remained 53 qualified jurors on the list, from which defendant was required to strike, 27 of the venire having been challenged for cause and excused by the Court."

Under the general law regulating the selection and impaneling of jurors for the trial of capital felonies, prior to the enactment of the present statute (Acts 1919, pp. 1040-1042, now sections 8644-8648, Code), it was repeatedly ruled by this court that it was within the power of the trial court, upon the organization of the regular juries for the week at which the capital cases were set, to excuse jurors drawn and summoned on the regular juries, "for good and sufficient reasons then made known to the Court," and usually entered of record. Fariss' Case, 85 Ala. 1, 4 So. 679; Plant's Case, 140 Ala. 52, 37 So. 159; Moseley's Case, 107 Ala. 74, 17 So. 932; Maxwell's Case, 89 Ala. 150, 7 So. 824; Thomas v. State, 124 Ala. 48, 27 So. 315; Williams v. State, 144 Ala. 14, 40 So. 405.

In Fariss' Case, first above cited, it was observed: "In Parsons v. State, 22 Ala. 50, this court held that the discharge of a juror under circumstances shown above, if objected to on the trial, was a reversible error. In Sylvester's Case, 71 Ala. 17, speaking of this subject, we said: 'Without deciding it to be error to excuse a juror from service before a capital felony is regularly called for trial, when he is shown to be exempt by statute, we are of opinion that the safer practice is not to excuse any juror, in advance of the trial, until he claims the privilege of such exemption on his name being regularly drawn.' Phillips v. State, 68 Ala. 469; Shelton v. State, 73 Ala. 5.

"This question, however, has been twice decided the other way, and we will treat it as settled. Floyd v. State, 55 Ala. 61; Jackson v. State, 77 Ala. 18. We do this not reluctantly, because the rule asserted in Parsons' Case is exceedingly inconvenient in practice, and it is believed that it accomplishes no good result." Fariss' Case, 85 Ala. 4, 4 So. 679, 680. (Italics supplied.)

While the statutes of the time these decisions were rendered provided that the "jurors summoned" (Code 1886, § 4449), or " the panel of petit juries organized for the week" the case was set for trial should constitute a part of the special venire for the trial, there was no provision in the statute then, as now, that the jurors constituting the venire for the trial of capital cases, including those drawn for the week the case was set for trial, should be summoned " to appear in court on the day set for the trial of the defendant. " Section 8644, Code 1923; Carmack v. State, 191 Ala. 1, 67 So. 989. (Italics supplied.)

Nor did the statute provide then, as it does now, that " on the day set for the trial if the cause is ready for trial, the court must inquire into and pass upon the qualifications of all the persons who appear in court in response to the summons to serve as jurors, and shall cause the names of all those whom the court may hold to be competent jurors to try the defendant or defendants to be placed on lists," etc. Section 8645, Code 1923. (Italics supplied.)

No doubt the Legislature in the enactment of this statute regarded these matters of importance to a defendant who was being placed on trial for his life, and mere matters of exceeding "inconvenience in practice" must yield to these statutory rights. Blevins v. State, 204 Ala. 476, 85 So. 817.

In Sullivan v. State, 102 Ala. 135, 15 So. 264, 266, 48 Am. St. Rep. 22, this court, applying a local statute applicable to Dallas county, strikingly similar, if not identical with the statute now in force, where the trial court on the day set for the trial ex mero motu excused one of the regular jurors because of a misnomer as to his Christian name, the court, speaking through Brickell, C.J., observed:

"1. The special statute in relation to the drawing and impaneling of grand and petit jurors, in the county of Dallas, requires that, whenever any person stands indicted for a capital felony, the court must, on the first day of the term, or as soon thereafter as practicable, make an order, conforming to section 4874 of the Code of 1876, commanding the sheriff to summon not less than 50, nor more than 100, persons, including those summoned on the regular juries for the week, from whom the panel for the trial is to be selected. Upon the court, on the day set for the trial, if the cause is ready for trial, is imposed the duty of inquiring into and passing 'upon the qualifications of all persons who appear in court in response to the summons to serve as jurors,' and to cause the names of all those whom the court may hold to be competent jurors to try the defendant to be placed on lists, and to require the defendant to strike off from the lists 2 names, and the solicitor to strike off 1; and this process is continued until only 12 names remain, who are to be sworn, and impaneled as the jury. It is further provided that, 'if the sheriff fails to summon any juror drawn, or any juror summoned fails or refuses to attend the trial, or there is any mistake in the name of any juror drawn or summoned, none or all of these grounds shall be sufficient to quash the venire, or continue the case.' Pamph. Acts 1884-85, p. 498.

"It is obvious the power the court is authorized to exercise in the process of the organization of the jury is the inquiry into, and determination of, the qualifications as a juror of the person appearing in obedience to the summons. It may doubtless reject any or all who may be subject to any disqualification, or who may not have the statutory qualifications. So, it may probably excuse or discharge any person because of reasons, personal to himself, which would render service as a juror oppressive. Beyond this it is not contemplated by the statute the power which the court may exercise, ex mero motu, shall extend. If there be not an absence of the statutory qualifications, or a temporary disqualification, or reasons personal, rendering service as a juror oppressive, the duty of the court is to cause the names of all appearing to be placed on the lists from which the jury is to be selected. A list of all who are to be summoned to appear, the law requires to be served on the defendant. The object is to enable him to prepare for his challenges; to afford him the opportunity of ascertaining whether causes for challenge exist; to exercise intelligently the right of peremptory challenge and the power of selection which the statute

confers. Parsons v. State, 22 Ala. 50. There should not be interference with this right, further than the statute sanctions.

The juror was not incompetent. There was no disqualification; no request to be excused because service would be oppressive. The only reason for his discharge was the misnomer of his Christian name,-a misnomer not affecting his identity, for by it he had been summoned, and to it he responded; an error which, by the express terms of the statute, is immaterial; not ground for quashing the venire, or a continuance of the cause. The court erred in the discharge of the juror. The error, it may be, was not of practical injury to the defendant. We deem it safer, however, to adhere to the long-settled rule that, when error is shown, the presumption of injury arises, which must be clearly repelled by the record, or the judgment will be reversed. 1 Brick. Dig. p. 780, § 100." See, also, Smith v. State, 183 Ala. 10, 62 So. 864.

While section 8614, brought forward from the Code of 1907, and long a part of the law, providing: "The court may excuse from service any person summoned as a juror if he is disqualified or exempt, or for any other reasonable or proper cause, to be determined by the court," is not to be overlooked, it was not incorporated in article 7, c. 311 (Code 1923, p 193,§ 8644 et seq.) dealing especially with the "Mode of Selecting and Empaneling Juries in Capital Cases," and cannot be construed as emasculating or modifying the provisions of sections 8644, 8645, which require the court to order the persons constituting the venire for the trial of capital cases, summoned to appear on the day the case is set for trial, and require the court, on the day set for the...