Walker v. State

Decision Date14 May 1920
Docket Number5 Div. 741
Citation85 So. 787,204 Ala. 474
CourtAlabama Supreme Court

On Rehearing, June 30, 1920

Appeal from Circuit Court, Elmore County; F. Loyd Tate, Judge.

Duff Walker was convicted of murder in the first degree, and he appeals. Affirmed.

Sayre Thomas, and Brown, JJ., dissenting in part.

Smoot &amp Morrow, of Wetumpka, for appellant.

J.Q Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen. for the State.


The appellant was convicted of murder in the first degree, and sentenced to life imprisonment. The indictment was returned on October 15, 1919. The amendment, by the act approved September 29, 1919 (Gen.Acts, pp. 1039-1042), of the jury law approved August 31, 1909 (Acts, pp. 305, 317, et seq.) was the law governing the special venire for appellant's trial. The act of 1909 required a special venire to contain the names of the regular jurors "drawn and summoned" for the week during which the capital case was to be tried. The amendatory act of 1919 omitted "summoned" from the provision indicated, thereby providing that the special venire should contain the regular jurors "drawn" for the week in which the trial was to be had. In the appellant's case the court fixed 65 as the number for the special venire from which the jury should be selected to try appellant. Of the regular jurors drawn for the week set for appellant's trial, 11 were not "summoned," the total number of such jurors "drawn and summoned" being 39. Erroneously proceeding under the pertinent provisions of the cited act of 1909, the court ordered that 26 special jurors should be drawn to complete the number (65) fixed for the special venire for the trial of appellant. The appellant questioned the regularity of the special venire so provided; but the trial court overruled his severally raised objections, and proceeded with his trial notwithstanding his protest. The special venire should have been composed of the regular jurors drawn (regardless of the number not summoned) for that week, and such number of special jurors as were necessary to complete the number fixed in the order, viz. 65. This was error; but it was without prejudice to appellant. Rudolph v. State, 172 Ala. 379, 55 So. 610. The number fixed in the order for a special venire was within the limits prescribed by the law. The result of the court's action, though erroneous, was to secure to appellant a greater number (within 65) from which to select the jury for his trial than would have been the case had the court constituted the not summoned members of the regular juries a part of the special venire for appellant's trial. In other words, the appellant was actually, though erroneously, favored by the course observed by the trial court.

The appellant also questioned the authority of the supernumerary judge to preside at his trial. Such an official has the same powers, and may discharge the same functions, as a circuit judge. Code, § 3279, as amended by the act approved September 8, 1915 (Gen.Acts, p. 355). By the act approved September 30 1919 (Gen.Acts, p. 858), the counties of Elmore, Chilton, and Autauga were constituted the Nineteenth circuit. On October 10, 1919, the Chief Justice directed the supernumerary judge "to perform and discharge all the duties of a circuit judge" in the Nineteenth circuit, until otherwise directed. It was in virtue of this authority that the supernumerary judge presided at the trial of the appellant. The act of the Chief Justice in directing the supernumerary judge as stated and the discharge of official duty in consonance with that direction was justified by section 4 of the act approved September 18, 1915 (Gen.Acts, p. 592). The fact that amended Code, § 3279, noted above, also authorized the Governor to direct the service of the supernumerary judge did not impair or qualify the subsequently conferred power of the Chief Justice in the premises. Reference to section 4 of the act approved September 18, 1915, supra, shows that the authority conferred on the Chief Justice in the premises is not confined to calling adjourned or special...

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19 cases
  • Anderson v. State
    • United States
    • Alabama Supreme Court
    • November 2, 1922
    ... ... 665, 89 So. 55; ... Paitry v. State, 196 Ala. 598, 72 So. 36) to the ... sufficiency of venire or the order therefor. The action of ... the court as to same is not for review, since the order and ... drawing of the special venire was without prejudice to ... defendant. Walker v. State, 204 Ala. 474, 85 So ... 787; Anderson v. State, 204 Ala. 476, 85 So. 789; ... Davis v. State, 205 Ala. 673, 88 So. 868; ... Charley v. State, 204 Ala. 687, 87 So. 177; ... Edwards v. State, 205 Ala. 160, 87 So. 179; ... Whittle v. State, 205 Ala. 639, 89 So. 43 ... ...
  • Whittle v. State
    • United States
    • Alabama Supreme Court
    • January 27, 1921
    ...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. the oral charge the jury were instructed as follows: "If the defendant got into a sudden encounter or affray with the deceased and th......
  • Morris v. Corona Coal Co.
    • United States
    • Alabama Supreme Court
    • April 8, 1926
    ...thereof. Code 1923, § 9509; Callaway v. Gay, 145 Ala. 524, 39 So. 277; Barney Coal Co. v. Hyche, 197 Ala. 228, 72 So. 433; Walker v. State, 204 Ala. 474, 85 So. 787; Pizitz D.G. Co. v. Cusimano, 206 Ala. 689, 91 So. 779. The cross-examination of plaintiff as a witness was free from error as......
  • Spooney v. State
    • United States
    • Alabama Supreme Court
    • January 26, 1928
    ...statute, and was at best an arbitrary substitution by the court of such list for the names provided for by the statute. In Walker v. State, 204 Ala. 474, 85 So. 787, the trial court had inadvertently followed the provisions of the Act of August 31, 1909 (Acts Sp. Sess. 1909, p. 305), instea......
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