Wilkins v. State
| Decision Date | 17 December 1896 |
| Citation | 21 So. 56,112 Ala. 55 |
| Parties | WILKINS v. STATE. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Washington county; William S. Anderson Judge.
Sam Wilkins appeals from a conviction for murder in the first degree. Reversed.
The appellant was indicted and tried for the murder of one Chambliss "by hanging him with a rope," was convicted of murder in the first degree, and sentenced to the penitentiary for life. Sam Wilkins was jointly indicted with several others for the murder of Chambliss, and, upon the cause being called for trial, the solicitor moved that there be a severance as to Sam Wilkins and two others, and that they be tried separately from the other defendants. The defendants objected to this, and moved that they all be tried jointly. The court overruled this motion, and to this ruling the defendant duly excepted. The rulings of the trial court which are reviewed at length in the opinion on this appeal arose on the motion of the defendant to quash the venire. The facts in reference to these motions are sufficiently stated in the opinion. The other rulings of the court, to which exceptions were reserved, were upon questions so repeatedly adjudged that it is unnecessary to set out the facts in reference thereto.
Charles K. Bromberg, Jr., and Samuel B. Browne, for appellant.
William C. Fitts, Atty. Gen., for the State.
Whether defendants jointly indicted are entitled, as matter of right to demand a joint trial, is not now an open question in this court. The statute (Cr. Code, § 4451) confers on such defendants the unqualified right to elect and demand separate trials, but it is incapable of any just construction conferring the right to demand that the trial be joint. If a separate trial is not demanded, it rests, as at common law, in the sound discretion of the court whether the trial will be joint or several. Jackson v. State, 104 Ala. 1, 16 So. 523; Wright v. State (Ala.) 18 So. 941.
The offense charged in the indictment, on conviction, could be punished capitally. The statute required the court to set a day for the trial of the case, and the formation of a special venire from which the jury for the trial were to be selected. The primary, indispensable constituent of the venire was the panel of petit jurors organized for the week, the day set for trial being a subsequent day of the same week. The remaining constituent was a list of jurors to be drawn by the court from the jury box of the county. The number drawn could not exceed 50, nor could it be less than 25. Within this limitation, the number rested in the discretion of the court. The court fixed the number at 50, and proceeded, in accordance with the statute, to draw from the jury box. After the drawing, and before the service of the venire on the defendants, it was discovered that there had been drawn from the jury box the names of 6 persons who were serving as grand jurors for the term, of 7 persons who were of the organized panel of petit jurors for the week, and of 1 person who had been drawn and summoned as a petit juror for the week, had appeared, and been excused from service by the court. These facts being made to appear, on motion of the solicitor, the court quashed the venire, and proceeded to draw again from the jury box, until the box was exhausted, a list to be added to the panel of petit jurors.
In this there was no error. The proceedings were in fieri, under the control of the court, and with its order there had not been compliance, literal or substantial. When, in the exercise of its discretion, the court determined and declared of record that 50 persons should be drawn and added to the panel of petit jurors organized for the week, that number became an essential, indispensable constituent of the venire from which the jury for the trial were to be selected,-as essential and indispensable as the panel of the petit jurors organized for the week. The two the statute intends shall constitute the venire in its entirety. If, by any error or inadvertence, a less number is drawn, the order of the court is not satisfied; and, so long as the proceedings are in fieri, the power of the court to correct the error cannot be doubted. There can be no proper distinction taken between the drawing the less number by error, and a drawing which results in adding to the organized panel of petit jurors, as a constituent of the venire, less than the number of 50 persons. In either event, the venire is not formed or constituted as the court has ordered; and, having the power, it is the duty of the court to correct the error. In Darby v. State, 92 Ala. 9, 9 So. 429, the court had made the identical order made in this case, and it was decided that it was good cause for quashing the venire that one of the persons drawn from the jury box was one of the petit jurors organized for the week. Without considering specially, in this connection, whether the venire would have been invalid because it contained the names of the persons drawn who were serving as grand jurors for the term, the presence of the names of the petit jurors would have vitiated it; and it was the duty of the court to avoid its issue and service on the defendants. So long as proceedings are in fieri, under the control of the court, it is a duty to correct errors which may have intervened, and which, if persisted in, will render them incapable of operation. When the venire has issued, and there has been service on the defendant, errors of name, or that it may contain the names of persons incompetent as jurors, and other like errors, inadvertent and unintentional, are disregarded. They are disregarded, because all such names may be discarded. and their places supplied by the drawing and summoning of a like number of persons competent as jurors, avoiding a reduction of the number to be added to the petit jurors organized for the week.
When the commissioners had drawn from the jury box the grand and petit jurors to serve for the terms of the circuit court to be held during the year 1896, having prepared the lists to be delivered to the clerk of the court, and the corresponding lists to be deposited in the box, the statute required them to destroy every piece of paper on which was written the name of a person so drawn. There is a purpose, plainly manifested by the statute, to avoid publicity of the names of the persons who are to constitute the juries, grand and petit for any term of the court, until the clerk, at the time appointed, breaks the seals of the envelopes the commissioners have directed to and deposited with him, and...
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...thereto and no exception was reserved. Jackson v. State, 104 Ala. 1, 16 So. 523; Wright v. State, 108 Ala. 60, 18 So. 941; Wilkins v. State, 112 Ala. 55, 21 So. 56; Charley v. State, 204 Ala. 687, 87 So. This brings us down to a consideration of appellants' motion for a change of venue in t......
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