Appeal
from Criminal Court, Jefferson County; D. A. Greene, Judge.
Robert
Stone was convicted of murder, and appeals. Reversed.
The
bill of exceptions contains the following recital as to the
organization of the jury to try the case: "At the time
of entering upon the trial of said cause, twelve of the
venire were absent upon the consideration of the verdict in
another case. The names of all the jurors were ordered placed
in a hat, and the hat covered over and the names of the
jurors drawn therefrom. As the names of the twelve absent
jurors were called, their names were, upon their not
answering, set aside separately to themselves. The defendant
had exhausted ten (10) peremptory challenges when the name of
Juror Pardon was called. Said juror qualified upon the voir
dire, and was accepted by the state. Then the defendant
peremptorily challenged said juror. The court refused to
allow said challenge, and overruled the same. The defendant
there and then excepted to the action of the court in
disallowing and overruling said challenge. When the defendant
had exhausted ten peremptory challenges, and while the twelve
jurors aforesaid were still absent, there was one juror yet
to be chosen. At this point the clerk announced that there
were no more names in the hat, but that from the tally sheet
there was one juror whose name had not been called; that
through inadvertence or mistake the name of one of the jurors
was not in the hat, and that he did not know which juror it
was, but could ascertain by checking his list. The court then
asked if there was any juror present whose name had not been
called and announced that any such should stand up. Thereupon
Kelley Johnson, one of the regular venire for the week, stood
up, and announced in open court that his name had not been
called, and that he had been present all the time. It
appearing that Kelley Johnson aforesaid had been duly
impaneled as a juror for the week, and through error the slip
bearing his name had not been placed in the hat, the court
ordered the clerk to place the name of the said Kelley
Johnson in the hat and draw it out. The defendant objected to
the placing of the name of Kelley Johnson in the hat. Pending
the action of the court on said objection, and before the
name of Kelley Johnson had been placed in the hat, court
adjourned for dinner. When the court reconvened, the twelve
absent jurors had returned into court. The court then
without passing on the said objection, ordered the clerk to
place the names of the twelve jurors and the name of said
Kelley Johnson in the hat; that is, to place the thirteen
names in the hat. The defendant objected to the court's
action in placing the thirteen names in the hat before
disposing of the objection raised before adjournment, and
upon this objection to court's not passing on the former
objection, defendant duly excepted. The defendant then
objected to the action of the court in ordering the names of
the said twelve jurors and Kelley Johnson in the hat. The
court overruled the objection, and, to the action of the
court in overruling said objection, defendant duly excepted.
The defendant objected to the placing of the said thirteen
names in the hat, which objection the court overruled. To the
action of the court in overruling said objection, defendant
duly excepted. The thirteen names, those of the twelve jurors
and Kelley Johnson, were then placed in the hat. Then the
name of Juror Tucker was drawn. Juror Tucker qualified upon
the voir dire and was accepted by the state. The defendant
challenged the said Juror Tucker, because said juror's
name had been illegally and improperly placed in the hat and
called. The court declined to allow said challenge.
Whereupon, to the action of the court in declining to allow
said challenge, defendant there and then duly excepted. The
defendant then challenged said juror peremptorily. It being
shown that the defendant had already exhausted ten (10)
peremptory challenges, the court disallowed the peremptory
challenge. Whereupon, to the action of the court in
overruling and disallowing the said peremptory challenge, the
defendant then and there duly excepted. The defendant then
made a motion to quash the panel, and for reasons therefor
separately and severally assigned the following grounds: (1)
Because the eleven jurors, and each of them, who were first
selected, were improperly and illegally drawn or selected as
members of the panel. (2) Because the eleven jurors, and each
of them, who were first selected, were drawn from a hat that
did not contain the names of the entire list of duly
impaneled jurors for the week. (3) Because the twelfth juror
was illegally and improperly selected. The court overruled
the motion to quash the panel. Whereupon, to the action of
the court in overruling the motion to quash the panel, the
defendant there and then duly excepted."
The
evidence for the state tended to show that, at the time of
the killing, the defendant was a convict, and was working in
the mines, under a sentence for life; that W. H. Thomas, the
deceased, was a guard at said mine, and was in the discharge
of his duty as such; that as the defendant came out of the
mine, at which the deceased was guarding, the defendant drew
a pistol upon the deceased and fired at him; that the
deceased fired at the defendant almost at the same time, and
there were several shots exchanged between them, and that the
deceased was killed by one of the shots fired by the
defendant. Upon the examination of one Dr. Lewis, he was
asked by the state whether or not the...
