Wilson v. State

31 Ala. 371

• Court: Supreme Court of Alabama
• Decided: January 15, 1858
• Status: Published

Opinion

RICE, C. J.

— The manner of organizing a jury, for the trial of a person charged with a misdemeanor, is not particularly prescribed by the Code, but is regulated by the general provisions contained in the following sections thereof:

“§ 8474. To dispose of the petit jurors for the transaction of business, the clerk must, on the day on which they are summoned to attend, prepare by lot a list of their names; the first twelve must be sworn, and called the first jury; the next twelve must then be sworn, and called the second j ary; and if there are any more petit jurors in attendance, they maybe placed on a third jury, or put on either of the other juries, as occasion may require ; and the jurors may be transferred from one jury to another, as the convenience of the court or the dispatch of business requires.”

“§ 3475. When, by reason of challenges, or any other cause, it is necessary, the court may cause petit jurors to be summoned from the by-standers, or the county at large, either to supply the deficiency on juries, or to form one or more entire juries, as the occasion requires.”

These provisions distinctly recognize the right of challenge, as secured and regulated by other sections of the Code. But they clearly authorize the circuit court, in the case of a misdemeanor, as well as in every other case to which they are applicable, to put upon the State and the defendant at once, for acceptance or challenge, twelve oí the regular petit jurors, or a smaller number, and to transfer regular petit jurors from one jury to another. In such a case as this, a discretion as to these matters is conferred upon the circuit court; the exercise of which will not furnish cause of reversal, unless the right of challenge, or some other right of the defendant, appeal’s thereby to have been denied or impaired. — Haight v. Holley, 3 Wend. R. 258. It does not appear in this case, that any right of the defendant was denied or impaired by the action of the court below in relation to the organization of the jury to try him.

2. Upon the evidence, and the former decisions of this court, it is clear that the front room of “Neal & Eariss’ office,” is a public house within the meaning of section 3243 of the Code. It is equally clear that the back room of the office partakes of the character of the front room, unless the occupation of the back room by William Wilson prevents that result. If the said Wilson had' rented and occupied it for his sleeping apartment, it may be conceded, that it could not have been regarded as a public house within the meaning of said section 3243. — Dale v. The State, 27 Ala. R. 31. But he had not rented it. He held it, not for himself, but for Neal & Eariss; not as their tenant, but rather as their servant; and as part of the family of Rariss, who was his brother-in-law. He could not have maintained trespass against them, or either of them, for entering that room. They could have turned him out of it when they would. They could have declared on his occupation of it, as their own occupation. His occupation of it was, in law, their own occupation. — Bertie v. Beaumont, 6 East’s Rep. 33; The King v. Stock, 2 Taunton’s Rep. 340; 2 East’s Crown Law, 500-503. Regarding, as we must do, the occupation of the back room of their office as in law their occupation, it was as much a public house, within the meaning of section 3243 of the Code, as the front room, as is fully shown by our previous decisions. — Huffman v. The State, 29 Ala. R. 40; Arnold v. The State, ib. 46; Brown v. The State, 27 ib. 47; Burnett v. The State, 30 ib. 19 ; Moore v. The State, and Cochran v. The State, at the last term.

There is no error; and the judgment of the court below is affirmed.