Washington v. State

• Decision Date: 06 January 1887
• Citation: 81 Ala. 35,1 So. 18
• Parties: WASHINGTON v. STATE.
• Court: Alabama Supreme Court

1 So. 18

81 Ala. 35

WASHINGTON v. STATE.

Supreme Court of Alabama

January 6, 1887

Appeal from circuit court, Greene county.

Indictment for murder.

Amos Washington was indicted for the murder of Teddy Mehan by the grand jury of Sumter county, at the February term, 1886. On application, a change of venue was granted to Greene county where the case was tried October 29, 1886, and the defendant sentenced to be hung, from which this writ of error is prosecuted. The facts of the case are substantially set out in the opinion, so far as the questions arising in the case are concerned. The record shows, in regard to the organization of said jury: "And, it appearing to the court that there are two capital cases standing for trial this week, *** the court proceeded to organize a panel of thirty-six men, of the following persons: *** and out of said panel did organize two petit juries, as follows: *** The other twelve jurors were excused until Friday, the day set for the trial of said cases. The court proceeded to draw from the jury-box, in the manner required by law, the names of twenty-four persons, which, with the thirty-six persons impaneled, shall constitute the venire to try said capital cases."

E Morgan and J. B. Head, for appellant.

T N. McClelland, Atty. Gen., for the State.

STONE C.J.

The questions arising in this case all grow out of the organization of the petit jury which rendered the verdict of guilty on which the sentence of death was pronounced. The trial took place in Greene, one of the counties in which the new jury law is of force, approved February 17, 1885, (Sess Acts 1884-85, p. 181.) In section 9 of the statute is the following provision: "If any capital case stands for trial during such week, the court shall organize a panel of thirty-six men, and shall then out of such panel organize two petit juries of twelve men each, and excuse the other twelve until the day set for such capital trial. If a sufficient number of those summoned for the *** petit juries shall not attend when such juries or panel of thirty-six men are to be organized, the court shall draw from the jury-box a sufficient number of names to complete such jury, as provided hereafter in section ten." As to the manner of drawing, section 10 provides that the court shall "cause the box containing the names of jurors to be brought into the court-room, and, after having the same well shaken, the presiding judge shall then and there publicly draw therefrom," etc.

The trial of Amos Washington, the defendant in this cause, was set for Friday, October 29, 1886, a day of the second week of that term of the court; and, at the time of organizing petit juries for that week, a sufficient number of those summoned did not appear to organize a panel of 36 petit jurors. The record discloses that the panel of 36 was organized, and 12 of them were excused from attendance until Friday, the day set for the trial. The record is silent as to the manner of drawing or selecting the additional petit jurors to complete the panel of 36. It is not shown that any objection or exception was taken in the trial court to anything done therein. It is contended for defendant that the record should show the additional petit jurors to complete the panel of 36 were drawn as the statute prescribes.

Our decisions have settled that when, in the progress of a trial for felony, it becomes necessary for the court to make an order touching the matter of the trial, such order must appear of record; for in no other way can the judgment of the court be expressed. Billingslea v. State, 68...