Washington v. State , 81 Ala. 35 ( 1886 )

STONE, C. J.

— The questions arising in this case all grow out of the organization of the petit jury, which rendered the verdict of guilty, on which the sentence of death was pronounced. The trial took place in Greene, one of the counties in which the new jury law is of force, — approved February 17th, 1885. — -Sess. Acts, 1884-5, page 181. In section 9 of that statute is the following provision : “ If any capital case stands for trial during such week, the court shall organize a panel of thirty-six men, and shall out of such panel organize two petit juries of twelve men each, and excuse the other twelve until the day set for such capital trial. If a sufficient number of those summoned for the . . . petit juries shall not attend when such juries or panel of thirty-six men are to be organized, the court shall draw from the jury box a sufficient number of names to complete such jury, as provided hereafter in section ten.” As to the manner of drawing, section ten provides that the court shall “ cause the box containing the names of jurors to be brought into the court room, and, after having the same well shaken, the presiding judge shall then and there publicly draw therefrom,” etc.

The trial of .Amos Washington, the defendant in this cause, was set for Friday, October 29, 1886, — -a day of the second week of that term of the court, — and at the time of organizing petit juries for that week, a sufficient number of those summoned did not appear, to organize a panel of thirty-six petit jurors. The record discloses that the panel of thirty-six was organized, and twelve of them were excused from attendance until Friday, the day set for the trial. The record is silent as to the manner of drawing or selecting the additional petit jurors, to complete the panel of thirty-six. It is not shown that any objection or exception was taken in the trial court, to anything done therein. It is contended for defendant that the record should show the additional petit jurors to complete the panel of thirty-six, were drawn as the statute prescribes.

Our decisions have settled that when in the progress of a trial for felony, it becomes necessary for the court to make an order touching the matter of the trial, such order must appear of record, for in no other way can the judgment of the court be expressed, — Billingslea v. The State, 68 Ala. 486; Finley v. The State, 61 Ala. 201; Gross v. The State, 63 Ala. 40 ; Posey v. The State, 72 Ala. 490. This principle applies to orders, setting a day for the trial of capital felonies, to orders for summoning additional jurors, and to other kindred questions. And when such order is made, it must conform to the law ; and failing, it will be ground of reversal on error.

But very many things occur in the trial of such causes, of which no record need be made ; and yet, they require affirmative action of the court, or of some ministerial officer. Ascertaining the qualifications of jurors is an example of this class of judicial questions; and service of a copy of the venire and of the indictment on the defendant is an illustration of ministerial service, of which the silence of the record raises no presumption of error. If such duty be omitted, the objection must be shown to have been taken in the court below. When the record is silent on questions of these classes, this court presumes the trial court and its officers did their duty. — Ben v. The State, 22 Ala. 9; Paris v. The State, 36 Ala. 232; James v. The State, 53 Ala. 380 ; Moses v. The State, 58 Ala. 117; Blevins v. The State, 68 Ala. 92; Phillips v. The State, Ib. 469 ; Spicer v. The State, 69 Ala. 159; Skelton v. The State, 72 Ala. 5 ; Brown v. The State, 74 Ala. 478.

In the present case the law fixed and defined the duty of the presiding judge. No order of the court was necessary, for the service was to be performed by the judge himself. The service was rather ministerial than judicial. The presumption, in the absence of a showing to the contrary, is that he did his duty.

We think the record sufficiently shows the jury were sworn. — Acts, approved February 17, 1885, Sess. Acts, 1884-85, p. 138.

There is nothing in the other questions presented, and the judgment of the circuit court must be affirmed.