McLemore v. State

36 So. 2d 452, 34 Ala. App. 34, 1948 Ala. App. LEXIS 579

Opinion

BRICKEN, Presiding Judge.

The indictment in this case charged Kenneth McLemore (appellant) with the offense of murder in the first degree, in that, he unlawfully and with malice aforethought killed William Reuben Burch, by cutting or stabbing him with a knife, etc.

From the record it affirmatively appears that the trial court, without the knowledge or consent of the defendant, excused Herbert A. McGregory from serving on the jury. Said juror had been regularly drawn and summoned in this, a capital case, to serve upon the jury, and as has been often decided, the court had no right or authority to excuse jurors so summoned, in the absence of defendant and without his knowledge or consent. The trial court erred to a reversal in this connection resulting in the necessity to reverse the judgment of conviction from which this appeal was taken and remanding the cause to 'the court below. Draper v. State, Ala.Sup., 36 So.2d 73; Hall v. State, Ala.Sup., 36 So.2d 74.

Reversed and remanded.