O'Rear v. State

66 So. 81, 188 Ala. 71, 1914 Ala. LEXIS 266

• Court: Supreme Court of Alabama
• Decided: June 30, 1914
• Status: Published

Opinion

SOMERVILLE, J.

While the new jury law supersedes all former laws regulating the organization of juries (Special Sess. Acts 1909, p. 305, § 32), and prescribes certain qualifications for the persons whose names are to be placed on the jury roll and in the jury box (section 11), nevertheless, it does not undertake to declare avIlo are competent persons for the trial of particular cases, and does not, in this respect, change preexisting law.

A person who will not inflict the death penalty upon any evidence, or upon circumstantial evidence alone, is not a competent and qualified juror in a first degree murder case, aud it is the power and duty of the court, of its own motion, to reject such a venireman.—Griffin v. State, 90 Ala. 596, 599, 8 South. 670, and cases cited.

Section 32 of the jury law (page 319) provides: “On the day set for the trial, if the cause is ready for trial, the court must inquire into and, pass upon the qualifications of all the persons who appear in court in response to the summons to> serve as jurors, and shall cause the names of all those whom the court may hold to be competent jurors to try the defendant or defendants to be placed on lists and if there is only one defendant on trial shall require the solicitor to strike off one name and the defendant to strike off two names, * * * and they shall in this manner continue to strike names from the list until only twelve names remain thereon.”

It is, of course, perfectly clear that, the former system of challenging jurors by the parties is abrogated and superseded by the method noAV prescribed, as above quoted. It is equally clear, however, that the trial judge must determine, not only whether the veniremen possess the general qualifications prescribed by the jury laAV for jury service in general, but also whether they are competent. jurors for the trial of the erne m hand. This being the judge’s duty, it is of no consequence whether he rejects an unfit venireman ex mero motu, or upon the suggestion of another. Justice is not concerned with the source of form of the information which reveals incompetence, but only Avith its resulting elimination from the jury box. Nor is it material that incompetents are not discovered by the preliminary inquiry before the lists are made up. If they be discovered at any time, at least before striking is begun, they should be stricken by the court. The action of the court in striking the names of the four veniremen who were shown to be incompetent for the trial of this case, was free from error.

If the defendant was in actual imminent peril of his life, or of serious bodily harm, at the time he shot deceased, and the other conditions requisite to the exercise of the right of self-defense were present, his honest belief in such peril is not material, and the law will make no inquiry as to its existence. The requirement of hon est belief is applicable only to a state of reasonably apparent peril.—Jackson v. State, 77 Ala. 18; Dolan v. State, 81 Ala. 17, 1 South. 707; 21 Cyc. 813b; 21 Cyc. 815c, and cases cited.

There was evidence from which the jury might have found that defendant was in actual imminent peril, and charge 1, given for the state, was erroneous in predicating the right of self-defense solely upon defendant’s honest belief as to such peril. The charge would have been correct if conditioned upon a finding that defendant’s peril was not real, but reasonably apparent only.

Charge 5, refused to defendant, correctly states the law of self-defense, and has been several times approved.—Bluilt’s Case, 161 Ala. 17, 49 South. 854 (charge 13); Bluett v. State, 151 Ala. 41, 51, 44 South. 84 (charge 26). Its refusal was error.

We find no error in the giving or refusal ot oilier charges.

For the errors noted, the judgment will be reversed and the cause remanded.

Beversed and remanded.

Anderson, C. J., and Mayfield and Gardner, JJ., concur.