Howard v. State

49 So. 108, 159 Ala. 30, 1909 Ala. LEXIS 698

• Court: Supreme Court of Alabama
• Decided: February 18, 1909
• Status: Published

Opinions

ANDERSON, J.

The trial court did not err in overruling the defendant’s motion to quash the venire. The order of the court complied with the statute. — Section 7265 of the Code of 1907. The case was set for trial during the same week of the setting of same, and the special venire drawn, together with the panel organized for said week constituted the venire. The fact that the case was continued over to the next week before the trial was entered- into did not render the venire illegal, though as intimated in the case of Thomas v. State, 94 Ala. 75, 10 South. 432, the court could have well reset the case and ordered another venire. The regular jurors, as fixed by the statute, to constitute a part of the venire te try a capital case, are those either organized when the case is set for the same week or those drawn when set for a subsequent week; that is, those organized as- drawn foi the week during which the case is set for trial and not the week when the case may be actually tried. — Thomas v. State, 94 Ala. 75, 10 South. 432; Gerald v. State, 128 Ala. 6, 29 South. 614. While these cases hold that the continuing of the case over to a week succeeding the one for which it was set for trial before entering into same did not render it necessary to draw a new venire, this case presents a question not directly raised or considered in said cases. The venire may have been legal, and should not have been quashed; but did it contain incom petent jurors who were improperly put upon the defend ant over his objection? Not jurors who were incompetent- when the venire was drawn, but who became incom petent because of the action of the court in causing them to serve the succeeding week.

Section 7247 of the Code of 1907 provides that no per son shall be competent to serve on a petit jury more than one week in any year, unless they are continued over to a succeeding week, because actually engaged in a tria) submitted to them during the week of their service. It is true this statute excepts such persons as may be “specially summoned to serve as jurors in. a capital case/' (Italics supplied.) But the regular panel in the case at bar were not “specially summoned to serve,” and only became a part of the venire to try same because the week fixed for the trial thereof ivas the Aveek for Avkick they Avere organized and serving as regular jurors. Having served the previous Aveek as regular jurors, they became incompetent to serve as such a subsequent Aveek. It is true they were ordered back only to serve the succeeding week upon the venire of tins particular case; but they became a part of the venire as regular jurors, and not because they were “specially summoned to serve” as a part of the special venire. These jurors, being incompetent, should not have been put upon the defendant, as it was the imperative duty of the court to have peremptorily excused them as their names were drawn in the organization for trial. — Section 7270 of the Code of 1907. Whether the failure to do this Avas reversible error, unless the point was taken by the defendant, Ave need not decide, as it was not Avaived, for each of said regular jurors Avere objected to by the defendant. As heretofore stated, this point Avas not raised nor directly considered in the Thomas and Gerald Cases, supra, and they are not, therefore authorities against the present holding. The trial had not been entered into during the week from Avhich it Avas carried over. — Holland’s Case, 107 Ala. 412, 18 South. 170, 54 Am. St. Rep. 101. Moreover, the statute (section 7247) requires that the jurors must be actually engaged in a trial submitted to them, in order to be competent to try same the succeeding Aveek.

As this case must be reversed, it is needless for us to determine whether or not the trial court erred in refusing a change of venue.

The trial court committed no error in ruling upon the evidence and charges. The charges refused the defendant were either bad or had been covered by given charges.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, O. J., and Simpson and Denson, JJ., concur.