Tennison v. State
| Decision Date | 30 June 1914 |
| Docket Number | 703 |
| Citation | 66 So. 112,188 Ala. 90 |
| Parties | TENNISON v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Limestone County; D.W. Speake, Judge.
Fletcher Tennison was convicted of murder, and he appeals. Affirmed.
See also, 62 So. 780.
W.R Walker, of Athens, for appellant.
R.C Brickell, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for the State.
Appellant was indicted, convicted, and sentenced to life imprisonment, for the murder of Arthur Slaton, by shooting him with a gun.
This is the second appeal. Some of the questions raised on this appeal, as to the admission of evidence touching the hearing of voices in the house and the crying of a woman, were presented on the former appeal and decided adversely to appellant; and we now adhere to that decision. There are other questions as to the admissibility of evidence against the accused, which were not presented on the former appeal.
The state was allowed on this trial, over the objection of the accused, to prove that, prior to the killing, deceased was convicted of selling liquor in violation of the prohibition laws, and that defendant confessed judgment for a fine and costs in that case as surety for deceased, and to prove a contract between the two by which the deceased agreed to work for the defendant at $4 per month until the fine and costs were paid.
The state was also allowed to prove by the wife of the deceased that she heard defendant tell deceased that the former would furnish the money to buy whisky and deceased could sell it, and they would divide the profit. This evidence was clearly admissible, in connection with other evidence, to show motive to commit the crime charged. Standing alone, it might not have such tendency; but in connection with other evidence which was unquestionably admissible, it does tend to show motive and corroborates other evidence of the state.
There was evidence tending to show that defendant was apprehensive that deceased might be a witness against him for some criminal offense, and that defendant was desirous of getting him out of the way, so that he could not or would not appear as a witness against the defendant. This evidence tended to show that defendant was guilty of a crime, and that the deceased could testify against him, and therefore that there was a motive for the killing as charged. There was evidence that the defendant had said before the killing that he would have to get Slaton out of the way before court sat, to keep him (Slaton) from appearing against him (defendant) in court; that if he could not get him out on good terms, he would on bad. It was also testified by one witness that defendant told the witness, a short while before the killing, that if he met Slaton that day he would put him out of the way, and that he told witness that he (witness) would have to help to drag Slaton off the bushes. All this evidence offered by the state, as to which the defendant objected and excepted, was properly admitted. It is unnecessary to treat each phase of testimony separately. All the objections and exceptions as to the evidence were without merit, for the reasons assigned in this opinion, and those on the former appeal.
There was no error as to the giving or refusing of special instructions to the jury.
The case has been well briefed by able counsel, and there is no intimation that there was error as to the charges. While, of course, neither assignment of errors nor insistence in brief is necessary in criminal cases, we mention this to show that we have carefully examined the record, as required by the statute.
The question most urgently insisted upon by counsel for appellant as error to reverse is as to the special venire from which the jury was selected to try the cause. The order of the court as to the special venire, which is material to the question for discussion, is as follows:
"It is further ordered that the number of jurors for the trial of defendant be fixed at 88, and that the sheriff summon 50 special jurors which the court then drew in open court, the defendant being personally present and by attorney which special jurors, together with the 38 jurors drawn and summoned on regular juries for the week during which defendant's trial is set, making a total of 88 persons, will form the venire from which to select a jury to try the defendant."
The defendant, by a timely motion, moved the court to quash the special venire, and objected to being put upon trial on the ground that:
"Prior to the order of the court, directing that the jurors summoned for this week of the term and special jurors drawn shall constitute the venire from which to select a jury to try this defendant, the court had excused 10 of the jurors summoned for this week of the term, thus, in effect, reducing the number of jurors constituting the venire in this case from 88 jurors to 78 jurors, and upon the further ground that the list of jurors served upon this defendant from which to try him this day consisted of 88 names made up of 38 jurors summoned for this week of the term and 50 jurors drawn in open court, as a special venire for this cause, which, under the order of court made on a former of this term, should constitute a special venire from which to select a jury to try this defendant, but, prior to the order of the court declaring what number should constitute the venire to try this cause, the court had excused 10 of the jurors, thereby depriving this defendant of a venire consisting of 88 names to which he was entitled under the order of the court, and furnishing him in fact a venire of only 78 names."
The facts stated in this motion were in open court admitted by the state to be true. The court overruled the motion, and required the trial to proceed; and the jury for the trial was selected without the ten jurors who had been formally excused being present, or being summoned after the case was set for trial and this special venire ordered. The defendant was thus required to select a jury of 12 for the trial of his case, from a venire of 78 instead of 88, as the previous order of the court fixed and directed. He was thus, by the action of the court, deprived of the presence of 10 persons of a number fixed by the statute and named as a class to constitute the venire for the trial of his case. This was clearly error, and if the question was properly raised, and not waived by the defendant, it must work
a reversal of the judgment. Jackson's Case, 171 Ala. 38, 55 So. 118.
It is very probable that the defendant will never have present the full number of persons fixed by the order of the court from which to select the 12 to try his case; some may not be competent; some may be sick, or be engaged in the trial of another case, or be absent upon other unavoidable contingencies. The absence of jurors for such causes is no fault of the trial court, and never affords cause for quashing the venire, or delaying the trial to obtain the full number. Both the statutes and the decisions of this court so declare. But if the accused is deprived of the full number by some unauthorized act of the trial court, and the attention of the court is called to the error within time to correct it, it is the duty of the court to correct it; and a failure so to do must work a reversal where the error is to the prejudice of the accused.
It will not do to say that the court, by the initial order, could have fixed the number at 50, and that defendant, having the 78, would then have had more than the minimum number fixed by the statute, and therefore that he has no cause to complain. When the court, by the order, fixed the number at 88, this fact became a part of the record of the court, and gave the accused the same right to have that number, no more and no less, as if the statute had named 88 as the fixed number. Suppose the statute had thus fixed the number at 88, it would not do to say that, because the Legislature could have fixed a less number, the accused had no right to complain if he was given a less number than that fixed by the statute.
As before stated, the mere fact that all the persons enumerated in the order, or the full number, do not appear, from which to select the jury of 12 does not necessarily give the...
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