Wilson v. State

• Decision Date: 17 January 1911
• Citation: 54 So. 572,171 Ala. 25
• Parties: WILSON v. STATE.
• Court: Alabama Supreme Court

54 So. 572

171 Ala. 25

WILSON v. STATE.

Supreme Court of Alabama

January 17, 1911

Appeal from Circuit Court, Chilton County; W. W. Pearson, Judge.

Joe Wilson was convicted of murder, and he appeals.Reversed and remanded.

Tipton Mullins, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

ANDERSON J.

The grand jury was organized under the law as it appears in the Code of 1907.The only qualification prescribed by section 7239 is that jurors must be male residents of the county over 21 and under 60 years of age.Their other qualifications and competency is left to the discretion of the jury commissioners.It is not therefore necessary that a juror must be at the time of service a qualified elector and entitled to vote.Section 1467, in fixing the ineligibility to office, has no application to jurors and who are not such officers as is contemplated by said statute.Indeed, most of the public officers are disqualified or exempted from jury service.If, however, the rule was otherwise, the fact that some of the members of the grand jury were not at the time of the organization of the grand jury qualified electors would go to their qualification when drawn or organized, and section 7572, expressly provides, among other things, that no objection can be taken to a grand jury on the ground that any member was not legally qualified.Holland v. State,162 Ala. 5, 50 So. 215.It is true that the objection taken in the Holland Case, supra, related to the grand jurors as originally drawn and organized, and this court has held that said section 7572 did not relate to defects and reorganizations subsequent to the original organization.Nordan v. State,143 Ala. 13, 39 So. 406;Osborn v. State,154 Ala. 44, 45 So. 666.The motion, however to strike the indictment is not directed alone to the qualification of jurors at the time of the organization, but sets up an incompetency on the part of some who participated in the deliberations when the indictment was found, some who were specially disqualified under section 7304 of the Code in that some of them were related to the defendant and did not withdraw, but took part in the deliberations when this case was considered and the indictment was found.There is no conflict between sections 7304and7572, but a field of operation for both.Section 7572 relates to original drawings and organizations, and section 7304 relates to the conduct and competency or qualification of grand jurors in certain instances.We do not think, however, that the defendant can complain, if some of his relatives helped find the indictment against him.This much of the statute was intended for the protection of the state, and, if it permitted some of the defendant's relatives to participate in the finding of the indictment, no injury was done the accused, and this is a proper case for the application of section 6264 of the Code of 1907.

The point made against the special venire, that it was drawn from a box that had been filled by the old jury commission, and after the appointment and qualification of the jury commissioners, under Acts 1909, p. 305, is without merit.The box was filled November 9, 1909, and the jury drawn therefrom served prior to the first Monday in January, 1910, and section 17 of the new jury law expressly provides that they shall be drawn, summoned, and impaneled under the old law.The old jury commissioners had authority under section 7242 to refill the jury box, whether the names had been fully exhausted or not.The statute is unlike the one construed in the case of Steele v. State,111 Ala. 32, 20 So. 648.Nor did the fact that the new jury commissioners have authority to act, in the preparation of lists and filling box prior to January, 1910, supersede or prevent action of the old board from drawing or doing all acts essential to the securement of legal jurors, under the old law, for service to be performed by said jurors prior and up to the first Monday in January, 1910.The Legislature intended no gap or chasm in the administration of the criminal law, by the enactment of the new jury law.

There was no error in placing the special jurors drawn in the hat, whether they were summoned or not, as they constituted a part of the venire to try the case.Code 1907, § 7265.Nor did the trial court err in not letting the defendant prove this fact, as the proof of same would have done him no good nor given him any meritorious exception.

It is true that section 7269 of the Code of 1907, in providing for the organization of the jury to try a capital case, requires that the jurors summoned for his trial, "as well as the names of the regular jurors in attendance," must be written upon slips, etc.This section, however, is in pari materia with section 7265, and must be construed in connection therewith, and which said section 7265 requires that all regular jurors shall be upon the venire, only when the trial is had during the week for which the case is set and the special venire is drawn, and when the case is tried during a subsequent week the venire shall consist of the special venire drawn by the court and the regular jurors drawn for said subsequent week, and does not include regular jurors in attendance during said week unless they had been previously drawn as such.Regular jurors in attendance, but who were not originally drawn as such, not being a part of the venire to try this case, could not be put upon the state or defendant, and it was not within the contemplation of the lawmakers that their names shoud be placed in the box and drawn therefrom in the organization and impaneling of the jury.The defendant's rejected proof failing to show that the regular jurors, whose names were not placed in the box, had been drawn for the week, was properly rejected by the trial court.The defendant should have the benefit of all jurors present, who belong upon the venire.This court has repeatedly held, however, that, when some of the jurors are engaged in the consideration of another case, the trial court may dispense with them.Dorsey v. State,107 Ala. 160, 18 So. 199;Cole v. State,105 Ala. 76, 16 So. 762, and other cases.These cases permit this only when the jurors are actually engaged in the consideration of another case, and do not justify the failure to include them merely because they had been impaneled in another case, which had not been tried, and which was not being considered when the capital case was called for trial.As this case must be reversed for other reasons, we will not decide whether the trial court erred in not including the regular jurors, who had been impaneled, but who were not actually considering another case, but will merely suggest that the action of the court in excluding them on previous occasions has been justified upon the ground that they were actually engaged in considering another case.

There was no error in permitting the witness Askins to testify that he traded the cheap pistol of defendant for another one with Foshee, and which pistol he got from Foshee was delivered to the defendant, as it showed that the pistol Askins got in return was for defendant and was turned over to him, and the state's theory was that defendant procured this said...