Trammell v. State

• Decision Date: 16 April 1911
• Citation: 55 So. 431,1 Ala.App. 83
• Parties: TRAMMELL v. STATE.
• Court: Alabama Court of Appeals

55 So. 431

1 Ala.App. 83

TRAMMELL v. STATE.

Court of Appeals of Alabama

April 16, 1911

Appeal from Circuit Court, Chambers County; S. L. Brewer, Judge.

Sam Trammell was convicted of manslaughter, and he appeals. Reversed and remanded.

N. D Denson, for appellant.

Robert C. Brickell, Atty. Gen., and W. L Martin, Asst. Atty. Gen., for the State.

DE GRAFFENRIED, J.

The defendant was indicted for murder, pleaded not guilty, was tried by a jury, found guilty of manslaughter in the first degree, and as punishment therefor was sentenced to the penitentiary for two years.

The presiding judge drew 13 names from the jury box, under all the formalities of law, which, with the 37 names drawn and summoned for the week in which the case was set for trial constituted the venire from which the jury was to be selected to try the defendant. The bill of exceptions shows that when the case was called "the defendant, after showing to the court that 12 of the jurors whose names were upon and formed a part of the venire served upon the defendant in this case were out considering a case which had just been submitted to them as jurors by the court, and that the fact that said jurors were out would reduce the list of jurors from which the jury would have to be selected [1 Ala.App. 85] to 24 objected to being required to proceed with the trial and the selection of a jury before the said 12 jurors then out returned and their names could be placed upon the lists from which the jury was to be selected, and also moved the court to postpone the selection of the jury in the case until the said 12 jurors could be present and their names could be placed upon the lists. The court overruled the defendant's objection, and the defendant duly and legally excepted to this ruling made by the court. The court also overruled the motion made by the defendant as above stated and to this ruling by the court the defendant duly and legally excepted." There was no error in the above rulings of the court.

The present jury law (see Acts of 1909, p. 320) is modeled upon an act "to regulate the drawing and impaneling of grand and petit jurors in Dallas county," and that portion of the act which relates to the drawing and summoning of jurors in capital cases was held to be mandatory by our Supreme Court in the case of Evans v. State, 80 Ala. 4, where the court says: "The order of the court for summoning jurors, drawing the number of names required as special jurors, the service of the venire on the defendant, inquiring into and passing on the qualifications of the persons summoned, and causing the lists of those competent to be prepared, are all preliminary and necessary proceedings to a legal trial. * * * The statute contemplates and provides for a separate drawing, as well as a separate order. The intention of the statute is to provide for the trial of one defendant, or two or more defendants jointly indicted--of one case--and preserves the singleness and continuity of the antecedent proceedings. At no stage should they be complicated or connected with the proceedings in any other case." In the above case, the court held that under the Dallas county jury law, now remodeled and made the law of the state, it was reversible error for the court to draw one list of special jurors for the trial of two or more capital cases set for trial on the same day. To meet this decision, the present jury law expressly provides that, when a court deems it proper, it may set two or more capital cases for the same day, and draw one venire for the trial thereof.

In the case of Evans v. State, supra, the court further said "In Kimbrough v. State, 62 Ala. 248, it was held that the court need not delay impaneling a jury, when one or more of the regular jurors are on the venire served on the defendant, are engaged in the consideration of another case, and cannot come into court voluntarily, nor be brought in without disregarding the rights of some other persons, equally entitled to the consideration of the law. The ruling is founded on the presumption that, when the Legislature provided that the regular jurors in attendance should constitute a part of the venire, it was contemplated that some of them might be engaged in the trial of another cause, and that the right of the defendant to have such regular jurors called is subject to the due administration of the law, and does not operate to delay or obstruct the business of the court." The...