Whittle v. State

• Decision Date: 27 January 1921
• Docket Number: 3 Div. 462
• Citation: 205 Ala. 639,89 So. 43
• Parties: WHITTLE v. STATE.
• Court: Alabama Supreme Court

89 So. 43

205 Ala. 639

WHITTLE v. STATE.

3 Div. 462

Supreme Court of Alabama

January 27, 1921

Rehearing Denied May 5, 1921

Appeal from Circuit Court, Conecuh County; John B. Lee, Judge.

Dan Whittle was convicted of murder in the first degree, and he appeals. Affirmed.

Robert H. Jones and L.B. Chapman, both of Evergreen, and Emmet S Thigpen, of Andalusia, for appellant.

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

THOMAS J.

By the verdict of the jury defendant was found guilty of murder in the first degree and the death penalty imposed. Defendant was jointly indicted with another, and there was a severance as provided by law. Dan Charley v. State, 87 So. 177.

On first arraignment, May 18, 1920, the order was for a venire to consist of 60 jurors (composed of the regular jurors drawn for the week beginning May 25th and 30 special jurors that were then drawn by the judge in open court from the jury box), and an order was issued commanding the sheriff to summon all persons constituting the venire from which the jury to try this defendant is to be selected to appear in open court, and it was ordered that a list of all jurors constituting the venire and a copy of the indictment be forthwith served on the defendant, "to appear in open court on the 25th day of May, 1920, the day set for trial of" the capital offense for which defendant had been indicted. Defendant's motion (May 25, 1920) to quash the venire, which assigned the ground, among others, that "the court originally drew from the jury box the names of 28 persons to serve as regular jurors for the second week of this special term of the circuit court in the manner required by law, instead of 30 jurors, the number required by law to be drawn, and later returned to the office of the circuit clerk of Conecuh county, and in the absence of the defendant and the defendant's counsel drew two additional names from the jury box in order to make the number required by law," was sustained by the court and special venire quashed.

The minute entry recites that after the venire was quashed on May 25, by agreement between the solicitor prosecuting for the state and the attorney for the defendant, in open court the trial of the case was continued until May 28, 1920. Defendant was then arraigned a second time on the indictment charging him with murder in the first degree and pleaded "not guilty." The court made a second order fixing the venire to try the defendant in this case to consist "of 72 persons," commanded the sheriff to "summon 72 jurors, including those drawn for the regular jury for the week set for the trial of this case for a venire in this case, and thereupon in open court and in the presence of the defendant and his attorney the court drew from the jury box *** 42 names, making with the 30 jurors drawn for the week in which this cause is set for trial 72 jurors for the venire from which this case shall be selected," and issued an order directing the sheriff to "summon all persons constituting the venire from which the jury to try this case is to be selected to appear in open court on the 28th day of May, 1920, the day set for the trial of this cause," and further ordered "that a list of all the jurors constituting the venire in this cause, including those for the week in which the trial of this case is set and those this day drawn as provided by law, together with a copy of the indictment, be forthwith served on the defendant."

On the day before entering upon the trial permission of the court was sought by defendant to withdraw his plea of "not guilty" theretofore interposed, that he might file a motion to quash the indictment against him, and which was denied by the court. Having pleaded "not guilty" to the indictment on his arraignment, without permission of the court, defendant may not withdraw his plea for the purpose of making a motion to quash the indictment. The construction placed upon the statute is that, as a general rule, it is within the sound discretion of the court to grant or refuse this permission. Sections 7159, 7567, Code 1907; State v Williams, 3 Stew. 454; Hubbard v. State, 72 Ala. 164; Nixon v. State, 68 Ala. 535; White v. State, 74 Ala. 31; Bryant v. State, 79 Ala. 282; Smith v. State, 142 Ala. 14, 39 So. 329; Jones v. State, 181 Ala. 63, 76, 61 So. 434.

Moreover, a grand jury once regularly impaneled is presumed to continue until dissolved by operation of law at the expiration of the term at which it is impaneled, or by an order of the court. There was no error in overruling the motion to quash the indictment returned by the grand jury reconvened by the court and which had not been dissolved by expiration of the term or by order of the court. Caldwell v. State, 203 Ala. 412, 84 So. 272.

The order fixing the day of defendant's trial was not required to be embraced in the record, there being no question "raised before the trial court," as to the sufficiency of such order fixing the date of his trial. Upon appeal it is "presumed to have been regular." Acts 1915, pp. 708, 709, amending section 6256 of Code 1907; Hardley v. State, 202 Ala. 24, 79 So. 362; Clayton v. State, 78 So. 462; Anderson v. State, 204 Ala. 476, 85 So. 789; Walker v. State, 204 Ala. 474, 85 So. 787; McPherson v. State, 198 Ala. 5, 73 So. 387. However, in the order of May 18, 1920, on defendant's first arraignment, we find the recital that it was "ordered and directed by the court that an order be issued to the sheriff commanding him to summon all persons constituting the venire from which the jury to try this case to be selected to appear in open court on the 25th day of May, 1920, the day set for trial of this cause." When referred to or considered with the orders of the court that day made in said cause, and the several orders relating to his arraignment and trial for murder in the first degree, no error is shown to have intervened in setting the date of defendant's trial on indictment for murder. After the first venire was quashed on said former date, the minute entry of May 25th recited the resetting of the day of defendant's trial and continuance "for Friday, May 28, 1920, at 9:30 o'clock. Accordingly the defendant was rearraigned and the cause was continued and reset for Friday, May 28, 1920." And the minute entry further recited that--

"It was agreed by L.B. Chapman, representing the defendant, and G.O. Dickey, the state solicitor, that all motions, orders, and decrees filed in the Dan Whittle case be considered filed, and that the venire of the court be same as in Dan Whittle case. It was further agreed by and between R.H. Jones, representing Dan Whittle, L.B. Chapman, representing Booker T. Whittle, and G.O. Dickey, representing the state, that the resetting of the cases be as follows: The Booker T. Whittle case be set for Thursday May 27, 1920, and that Dan Whittle case be set for Friday May 28, 1920. 5/25/1920. Continued to May 27, 1920."

This was an affirmative compliance by the court with the statute in fixing the date of defendant's trial on the indictment for murder. Green v. State, 160 Ala. 1, 49 So. 676; Wright v. State, 155 Ala. 39, 46 So. 229; Spicer v. State, 69 Ala. 159.

Insistences of defendant (as appellant) are that there was error in overruling his motion to quash the (second) venire of 72 jurors because the "regular jury that had been drawn for that week" in which defendant's trial was set had been quashed (when first venire of 60 jurors was quashed), and because "no other regular jury was drawn." This question was raised by motion to quash the venire and objection to going to trial with such venire. Appellant's counsel thus states the insistence:

"Having quashed the regular venire for the week, [the court] should have drawn another regular venire [as well as special jurors to complete the second venire], and that it was error to compel the defendant to go to trial upon a venire, a part of which had been quashed."

There is no merit in the assignments of error challenging this action of the court. A special venire provided for the trial of a capital case is composed of two different component parts, including: (1) Those persons "drawn on the regular juries for the week set for the trial of the case"; and (2) those "required with the special jurors drawn for the week set for the trial to make the number named in the order" of the court fixing the venire to try the case, which special venire may not contain "less than fifty nor more than one hundred persons." Gen.Acts 1919, pp. 1040, 1041, § 32. The special venire provided by statute for the trial of a capital felony is in no sense the regular venire drawn for the week in which such felony is set for trial, but is composed of that regular venire drawn and the number of persons drawn by the court from the jury box to complete the venire as required by the order of the court; that is, the special jurors so drawn and the regular jurors drawn for the week set for trial, to make the number (of the special venire) that named in the order of the court providing for the same as required by statute.

It was this special venire consisting of 60 persons, in the first instance, that was quashed on defendant's motion. The court thereafter specified that the second venire for the trial of Dan Whittle should consist of 72 persons, including those drawn for the regular jury for the week set for the trial of this case for a venire, and in open court and in the presence of the defendant and his attorney drew from the jury box 42 names, making, with the 30 names regularly drawn as jurors for the week, 72 jurors for the venire from which the jury to try the defendant were to be selected. The former order of the court quashing the first venire of 60 (in the Dan Whittle case) did...