Knott v. State

80 So. 442, 202 Ala. 360, 1918 Ala. LEXIS 440

• Court: Supreme Court of Alabama
• Decided: December 19, 1918
• Docket: 5 Div. 708.
• Status: Published

Opinion

GARDNER, J.

It is insisted by counsel for appellant that the order of the court, requiring the venire with a copy of the indictment to be forthwith served upon the defendant, is insufficient, as not in compliance with section 7840 of the Code..

[1] The order was in strict compliance with section 32 of the present jury law (Special Session 1909, p. 305), which supersedes the provision of said section 7840 of the Code. Hardley v. State, ante, p. 24, 79 South. 362; Kirby v. State, 5 Ala. App. 128, 59 South. 374.

[2] On the day of his arraignment, defendant pleaded “not guilty.” As to whether or not he should be allowed to interpose the plea of “not guilty, by reason of insanity,” on the day of the trial, was a matter resting within the discretion of the trial court, and nothing here appears to indicate an abuse of that discretion. Morrell v. State, 136 Ala. 44, 34 South. 208; section 7176, Code 1907.

It appears from the record that the court ordered a special venire of 40 jurors, who, with the regular jurors summoned for that week, were to constitute the venire for the selection of a jury for the trial of the defendant; and that an error was made in ascertaining the number as 31 regular jurors instead of 37. The venire therefore served upon the defendant on the day of his arraignment contained 6 names less than contemplated by the order of the court; and, upon the day first set for trial (March 22d), the motion of the defendant to quash the venire, and his objection to being placed on trial, directed the attention of the court to this error. The court thereupon amended the order so as to have drawn and summoned the regular jurors for that week of court, which, of course, included the 6 names previously omitted, and thus constituted 37 jurors, who, together with the 40 special jurors, increased the number to 77.

[3] We are unable to see whereby the defendant was in the least prejudiced by this action of the court. The number of special jurors was not increased, but remained the same, and, by the amended action of the court, he received the full benefit of all the' regular jurors summoned for that week, and his trial was passed until the following day.. There is nothing in the record to indicate that defendant did not have ample time before the trial — the following day — to consider the amended venire, as it only included six additional names. We think it quite clear that in this action of the court, invited by the defendant, there was nothing of which he can complain. Waldrop v. State, 185 Ala. 20, 64 South. 80.

[4] Motion was made to set aside the verdict upon two grounds, which are set out in the statement of the ease. We do not consider that the questions there presented need discussion here, as we are of the opinion that what appears in the statement of the case, as shown by the record in regard to these matters, suffices to demonstrate that the court committed no reversible error in refusing to grant the motion upon these grounds.

[5] In support of the question presented as to the trial court replacing in the jury box the name of Herbert King, when drawn, counsel cite Finnett v. State, 12 Ala. App. 237, 67 South. 768; but a consideration of this authority in this connection is unnecessary, as what appears in the statement of the case on this point clearly demonstrates the same is without application here, and that no error was committed.

It is suggested that the judgment entry is insufficient to support the sentence or judgment of conviction, but an examination of the record clearly shows that this suggestion is without merit.

We have here given response to the ques-' tions argued by appellant’s counsel in their brief; but mindful of our duty in eases of this character, and fully feeling the responsibility resting upon us, we have carefully examined the record, and considered in consultation the few remaining questions presented therein, and find in none of them anything meriting discussion or separate treatment here.

Finding no reversible error in the record, it results that the judgment of conviction must be here affirmed.

Affirmed.

ANDEBSON, C. J„ and McCLELLAN, MAYFIELD, SAYBE, SOMEBVILLE, and THOMAS, JJ., concur.