Waldrop v. State
| Decision Date | 30 June 1913 |
| Parties | WALDROP v. STATE. |
| Court | Alabama Supreme Court |
Rehearing Denied Dec. 18, 1913
Appeal from City Court of Anniston; Thomas W. Coleman, Jr., Judge.
Alexander Waldrop was convicted of killing his wife, and sentenced to be hanged, and he appeals. Affirmed.
The following is the charge refused to defendant: "In order to reduce the offense from murder in the first degree to a lower degree, it is not essential that defendant should have been intoxicated to such a degree as to be unconscious of his acts."
P.F Wharton and Tate & Arnold, all of Anniston, for appellant.
R.C Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.
It has been several times ruled by this court that section 32 of the New Jury Law (Sess.Acts 1909, p. 319) is mandatory in its requirement that, in capital cases, the trial court shall fix the number of the special venire, and that the defendant shall have the benefit of the number so fixed for the selection of his trial jury. Jackson v. State, 171 Ala. 38, 55 So. 118; Bailey v. State, 172 Ala. 418 55 So. 601; Andrews v. State, 174 Ala. 11, 56 So. 998.
It is insisted for appellant (1) that the record fails to show that any order was made fixing the number of the venire, and (2) that the sheriff was not ordered to summon all of the venire, but only the 50 drawn as special jurors; and hence it is conceived the statute has not been complied with, and fatal error appears.
The language of the statute is as follows: "Whenever any person or persons stand indicted for a capital felony, the court must on the first day of the term, or as soon as practicable thereafter, make up an order commanding the sheriff to summon not less than 50 nor more than 100 persons including those drawn and summoned on the regular juries for the week set for the trial of the case, and shall then in open court draw from the jury box the number of names required with the regular jurors drawn and summoned for the week set for the trial to make the number named in the order, and shall cause all order to be issued to the sheriff to summon all persons therein named to appear in court on the day set for the trial of the defendant and must cause a list of the names of all the jurors summoned for the week in which the trial is set, and those drawn as provided in this section, together with a copy of the indictment, to be forthwith served on the defendant," etc.
Having strict regard to this language, it is obvious that the record does not show a compliance with its requirements in the particulars complained of.
Nevertheless, the recital of the minutes that the court drew 50 names, making, with those of the regular jurors drawn and summoned, 78 jurors as the venire from which the jury should be selected, though it does not show in ipsis verbis an order to that effect, does ex vi terminorum show that the order was made--especially in view of the recital immediately following, that "it is further ordered that the sheriff be required to summon the said 50 persons so drawn to appear on the day of trial," etc. Any other interpretation of the recitals would be but a narrow and technical evasion of common sense. The statute must be construed, and it must be executed by the trial court, so as to give to the defendant the benefits intended and mandatorily prescribed. But the defendant cannot justly complain of mere informalities which do not in any way affect the number, or personnel, or character of the veniremen provided for his selection of jurymen. We hold that an appropriate order is sufficiently shown by the record.
It is true, also, that the statute directs that an order be made "commanding the sheriff to summon not less than fifty nor more than one hundred persons, including those summoned on the regular juries for the week"; and, further, that an order "be issued to the sheriff to summon all persons therein [[in the order] named to appear in court on the day set for trial," etc. The primary purpose...
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Whittle v. State
... ... the court's order. He was not required to select a jury ... for his trial from a venire composed of a less number of ... persons than that prescribed for the venire in the order of ... the court, as was the case in Carmack v. State, 191 ... Ala. 1, 67 So. 989; Waldrop v. State, 185 Ala. 20, ... 64 So. 80; Andrews v. State, 174 Ala. 11, 56 So. 998 ... Ann.Cas.1914B, 760; Jackson v. State, 171, Ala. 38, ... 55 So. 118; Bailey v. State, 172 Ala. 418, 55 So ... 601; Nordan v. State, 143 Ala. 13, 39 So. 406; ... Walker v. State, supra ... During ... ...
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