Umble v. State, 6 Div. 399.

CourtSupreme Court of Alabama
Writing for the CourtMcCLELLAN, J. McCLELLAN, J.
Citation93 So. 531,207 Ala. 508
PartiesUMBLE v. STATE.
Docket Number6 Div. 399.
Decision Date13 April 1922

93 So. 531

207 Ala. 508

UMBLE
v.
STATE.

6 Div. 399.

Supreme Court of Alabama

April 13, 1922


Rehearing Denied May 11, 1922.

Appeal from Circuit Court, Jefferson County, Bessemer Division; J. C. B. Gwin, Judge.

Johnsie Umble was convicted of murder in the first degree, and he appeals. Affirmed.

Roderick Beddow and Ben. F. Ray, both of Birmingham, and G. H. Bumgardner, of Bessemer, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

McCLELLAN, J.

The defendant, appellant, has been adjudged guilty of murder in the first degree, and sentenced to life imprisonment. The victim was his wife. On the occasion of the homicide defendant also shot and killed his sister-in-law, and then seriously, intentionally, wounded himself. Besides a denial of guilt, defendant's insanity was set up. The shooting of the wife was admitted by defendant. The issue really litigated was that presented by the plea of insanity. The court submitted this issue to the jury. The insistence for error to reverse is based upon the action of the trial court in overruling motion to quash the venire, on rulings touching the admission of testimony, and on the refusal of defendant's request for instructions. It is insisted that the venire should have been quashed because the court did not draw any "regular venire" for the week during which defendant's trial was set and had. In Whittle v. State, 205 Ala. 639, 642, 89 So. 43, it was held that a special venire for the trial of a capital case should be composed of two "different" elements, viz.: (a) The "regular juries" drawn for the week the capital case is set; and (b) the special jurors drawn to afford the number for the special venire fixed in the order of the court. In declining, expressly, to draw any names of persons to serve as regular jurors for the week beginning January 24, 1921, the trial court was in error, thereby omitting the designation of one of the elements the law contemplates should contribute to constitute a "special venire" in capital cases. It is insisted by the state that the last clause in section 32 of the amendatory act approved September 29, 1919 (Gen. Acts 1919, p. 1042), justified the court's declination to create "regular juries" for the week beginning January 24, 1921. This clause reads:

"Provided further, that whenever the judge of any court trying capital felonies shall deem it proper to set two or more capital cases for trial on the same day, said judge may draw and have summoned one jury or one venire facias or petit jurors for the trial of all such cases so set for trial on the same day." [93 So. 532] This proviso does not support the state's contention. As a general rule-from which the terms of the act do not exclude this proviso-provisos are strictly construed with respect to their effect to modify or to qualify comprehensive terms in the enactment. Ex parte Lusk, 82 Ala. 519, 522, 823, 2 So 140. This proviso intended to create an exception in the particular circumstance stipulated, viz. where more than one capital case is set for "the same day." Its effect is to remove the necessity otherwise to draw a special venire for each capital case set for trial "on the same day." Stewart v. State (Ala. App.) 89 So. 391 appears not to have advisedly decided the question now under consideration. The certiorari by the state to this court did not present the question

But this error did not operate to the prejudice of the defendant. Contrary to appellant's contention that the order of the court was affected by uncertainty in respect...

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17 practice notes
  • Burns v. State, 6 Div. 965.
    • United States
    • Supreme Court of Alabama
    • October 6, 1932
    ...of defendant and others charged with felonies whose cases were respectively set upon the same day (Code, §§ 8616, 8649; Umble v. State, 207 Ala. 508, 509, 93 So. 531); that the court ordered the sheriff to summon said jurors [section 8619, Code], and that a list thereof and copy of the indi......
  • Manning v. State, 6 Div. 891
    • United States
    • Supreme Court of Alabama
    • March 29, 1928
    ...State, 208 Ala. 199, 94 So. 59; Whittle v. State, 213 Ala. 301, 104 So. 668; Lambert v. State, 207 Ala. 190, 92 So. 265; Umble v. State, 207 Ala. 508, 93 So. 531. The basis for the insistence of insanity under his plea was merely the action of appellant just prior to and at the time of the ......
  • Patterson v. State, 8 Div. 320.
    • United States
    • Supreme Court of Alabama
    • March 24, 1932
    ...134 Ala. 71, 32 So. 650. But the quoted statute changed this rule as applied to cases set for trial on the same day. Umble v. State, 207 Ala. 508, 93 So. 531; Stewart v. State, 18 Ala. App. 92, 89 So. 391. The contention, therefore, of the appellant, that he was entitled to a special venire......
  • Mobile Liners, Inc. v. McConnell, 1 Div. 555.
    • United States
    • Supreme Court of Alabama
    • January 23, 1930
    ...of the rule. Ex parte Majestic Coal Co., 208 Ala. 86, 93 So. 728; National Cast Iron & Pipe Co. v. Higginbotham, supra; Umble v. State, 207 Ala. 508, 93 So. 531; Ex parte Lusk, 82 Ala. 519, 2 So. 140; Eddington v. N.W. B. Tel. Co., 201 Iowa, 67, 202 N.W. 374. The construction of the statute......
  • Request a trial to view additional results
17 cases
  • Burns v. State, 6 Div. 965.
    • United States
    • Supreme Court of Alabama
    • October 6, 1932
    ...of defendant and others charged with felonies whose cases were respectively set upon the same day (Code, §§ 8616, 8649; Umble v. State, 207 Ala. 508, 509, 93 So. 531); that the court ordered the sheriff to summon said jurors [section 8619, Code], and that a list thereof and copy of the indi......
  • Manning v. State, 6 Div. 891
    • United States
    • Supreme Court of Alabama
    • March 29, 1928
    ...State, 208 Ala. 199, 94 So. 59; Whittle v. State, 213 Ala. 301, 104 So. 668; Lambert v. State, 207 Ala. 190, 92 So. 265; Umble v. State, 207 Ala. 508, 93 So. 531. The basis for the insistence of insanity under his plea was merely the action of appellant just prior to and at the time of the ......
  • Patterson v. State, 8 Div. 320.
    • United States
    • Supreme Court of Alabama
    • March 24, 1932
    ...134 Ala. 71, 32 So. 650. But the quoted statute changed this rule as applied to cases set for trial on the same day. Umble v. State, 207 Ala. 508, 93 So. 531; Stewart v. State, 18 Ala. App. 92, 89 So. 391. The contention, therefore, of the appellant, that he was entitled to a special venire......
  • Mobile Liners, Inc. v. McConnell, 1 Div. 555.
    • United States
    • Supreme Court of Alabama
    • January 23, 1930
    ...the rule. Ex parte Majestic Coal Co., 208 Ala. 86, 93 So. 728; National Cast Iron & Pipe Co. v. Higginbotham, supra; Umble v. State, 207 Ala. 508, 93 So. 531; Ex parte Lusk, 82 Ala. 519, 2 So. 140; Eddington v. N.W. B. Tel. Co., 201 Iowa, 67, 202 N.W. 374. The construction of the statut......
  • Request a trial to view additional results

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