Ezell v. State , 102 Ala. 101 ( 1893 )

STONE, C, J.

It has long been the general law .of this State that only freeholders and householders of the county are competent to do jury duty. Hence it was ground of challenge for cause if the person offered for such service was neither a freeholder nor a householder. But the act “To more effectually secure competent and well qualified jurors in the county of Montgomery,” has, it is contended, changed that rule, so far as that county is concerned. — Act approved February 21, 1887 — Sess. Acts 1886-87, p. 190. In section 3 of that act it is declared that the jury commissioners shall select the “jury list” from “the male residents of the county over twenty-one and under sixty years of age.” ' The presiding judge held that the qualification of “freeholder or householder” was no longer requisite for jury service under the statute ; and to this ruling defendant excepted. '"We refer also to act approved December 4, 1888, Sess. Acts, 1888-89, p. 139 ; Séss. Acts 1892-93, p. 917. '

Our, attention has been directed to Iverson v. The State, 52 Ala. 170, as being opposed to these views. Some expressions found in the majority opinion in that case; if considered without reference to the state of the statutes on which, they were pronounced, give a seeming support to this contention. But the statutes were entirely .differ-; ent from those which must-control the question we llave in hand. This will be made plain -by a brief reference to the statute law, as it existed before, and when-the statute which gave rise to that discussion was enabled — - December..31, 1868.- Sess. Acts, 1868, pp. 550-1.

■ Who were competent grand and petit jurors, and''the: mode of ^electing thfem, before, and up to the,enactment of,, that statute, had been made known by sections 4062-3, of the Code of 1867. Section 4062 declared who. should.be placed: "on. the list from'which the- selection.' was to be made; namely, “all the householders and freeholders residing in” the county. From this list it was made the duty to select “the names of such persons as may [should] be thought competent to discharge the duties of grand and petit jurors for the county.” Section 4063 directed what county officers should make the selection, announced certain disqualifications, and declared the rules and principles by which the officers should be governed in making the selections. It in no sense impaired the force of section 4062, which prescribed that householders and freeholders should constitute the list from which the selections should be made. Now, the act approved December 31,1868, amended section 4063 of the Code of 1867, and, by constitutional provision, repealed that section as it theretofore existed. It njade no reference whatever to section 4062 of that Code. It enacted an additional qualification for jury service; they must be “registered voters.” The statute itself shows that there was no intention to abrogate, or dispense with any qualifications section 4062 had prescribed that jurors should have. The decision of the majority of the court in Iverson’s Case need not be, and is not, assailed. We state what we think was the true ground to rest it on, namely: that the purpose of the amendatory statute was, not to dispense with any former qualifications of jurors, but to require an additional one. Had the legislature intended to give the statute a larger operation, they must needs have amended, not only section 4063 of the Revised Code, but section 4062 as well. This they did not do.

The jury law for Montgomery county, approved February 21, 1887 — Sess. Acts, 1886-87, p. 190-^has very different provisions. It does not refer to any section of the Code,, and does not express any intention to amend or repeal any% former law, save in its last section, 18. It declares, “That section (4732) four thousand seven hundred and thirty-two of the Code of Alabama, and all other laws and parts of laws, general and special, conflicting with the provisions of this act, be,'and the same áre hereby repealed ; but all laws now in force in relation to jurors, their drawing, selecting or qualification, not in conflict with this act, are hereby continued in full force and effect.”

Now, what is section 4732 of the Code of 1876, the Code of our statutes which was of force, when the jury-law of Montgomery county was enacted, February 21, 1887, and which section was thereby repealed in express terms? It is the same section, verbatim, which is numbered 4062 in the Code of 1867, 4732 in the Code of 1876, and 4299 in the Code of 1886. It is the section which makes it the duty of the sheriff ‘ ‘ to obtain biennially a list of all the householders and freeholders residing in his county,” from which list must be selected “the grand and petit jurors.” So that the law requiring that the list from which jurors are selected shall be householders and freeholders, is expressly repealed, so far as Montgomery county is concerned. This leaves Montgomery county without directions as to the classes of persons from which jurors shall be selected, save as said act of February 21, 1887, prescribes rules.

The statute of February 21, 1887, created a board of revenue for Montgomery county, and constituted it a board of jury commissioners. The sheriff, judge of probate and clerk of the circuit court are relieved of all duties in obtaining a list, selecting suitable persons for jury service, and drawing juries, alike grand and petit. These duties are transferred to the board of jury commissioners. Sections 3, 4 and 5 of the act contain the directions. Section 3 commands, “That said commissioners, at such meeting, shall select from the male residents of the county,-over twenty-one and under sixty years of age, the names of all such persons, not exempt from jury duty, as, in their opinions, are fit and competent to discharge the duties of grand and petit jurors, with honesty, impartiality and intelligence.”, Sections 3, 4 and 5 then proceed to declare the further duties of the jury commissioners in preparing lists of the jurors selected, in drawing juries for the several courts from the'list of “male residents of the county,” &c. The words, “freeholders and householders,” are no where mentioned in the statute ; and section 4299 of the Code of 1886, being, as we have shown, expressly repealed as to Montgomery county, it follows that those1 qualifications cease to be essential to the eligibility of jurors ih that county.

We apprehend that under the act we are construing— February 21, 1887 — no oue will deny that “the male residents of the county [Montgomery] , over twenty-Qpe, and under sixty years of age/’ constitute the body of persons from which the jury list must be selected. The statute, in terms, says so. There is no statute in existence, applicable to Montgomery county, which declares that they must be freeholders and householders. It follows that residents of the county, who are neither freeholders' nor householders, will, in the nature of things, be drhwn as jurors. They are competent for all'jury service, and are eligible to be placed on juries in all cases. Throughout their entire service, either in selecting the jury list, or drawing juries for the courts, or for any special service the jury commissioners, and all others charged with the duty of drawing juries; are without authority to dictate as a qualification that the persons drawn shall be freeholders or householders. If the service proposed be that of grand juror, or the trial of a civil cause, no one can be heard to object to, or to challenge for cause, any resident of the county who may be offered, on the ground that he is neither a freeholder nor a householder. Can we hold that a person, who is eligible to be placed on the jury list of Mont- • gomery county, can not be objected to for cause when tendered as a grand juror, or as a juror in a civil case, yet. may be challenged for cause in a criminal prosecution, on a ground which does not authorize the court or the jury commission to strike or withhold his name from the jury list or panel? We hold that in the repealing clause of the .act of February 21, 1887, not only is section 4299 of the Code of 1886 repealed in and' for Montgomery county,-but also the first ground of challenge enumerated in section 4331 in the same Code. This, because that ground of challenge conflicts with the later enactment. The city court did not err in disallowing the challenge of the juror, Grade Niblett, for the cause assigned. He was a competent juror under the statutes applicable to Montgomery county.

When the court rejected S. A. Wood as a juror, because his name did not appear on the list of the ■ venire which had been served on the defendant, the presiding judge proceeded at once to supply his place, by drawing another name from the jury box, and placing it in the box or hat from which the jury was to be completed. This was done before the panel had become exhausted; and the defendant excepted to this action. There was also a question raised as to the duty of the court to take for this service, and to he offered for acceptance orrejec-' tion, the first name drawn of a person who resided within two miles of the court-house. This particular duty or service is provided for in the proviso to section 10 of the act approved February 21,1887. — Sess. Acts 1886-87, p. 195. Its language is, “that if at the time appointed for the trial of the capital case, a jury should not be made of those summoned and appear, the court shálb draw from the petit jury box a sufficient number of names to complete said jury ; provided, that should any juror so drawn reside more than two miles from the ' court house, the said juror may, in the discretion of the ■ presiding judge, be relieved from attendance on said • trial.” This provision of the act of 1887 has never been changed.

The drawing in this case to supply the place of the juror Wood, misdescribed in the notice served on the prisoner, was premature. Such drawing is not authorized, unless there is a failure to complete a jury of twelve from those who are summoned and who appear. It can not be known there will be such failure, until all the names are drawn from the box or hat, and the panel in that way exhausted. Nor does the statute give the presiding judge authority to pass over, or excuse any competent juror whose name may be drawn, unless stich person “resides more than two miles from the courthouse.” In drawing the juror at the time it is shown to have been done in this case, the city court erred. The statute should be conformed to. — Murphy v. State, 86 Ala. 45; Steele v. State, 83 Ala. 20.

Fearing our silence might be misinterpreted, we will ' add, that the names of the jurors, Smilie and McCullough, appear to have been so imperfectly set forth' in the notice of the venire served on the defendant, that defendant's motion to reject them should have prevailed; This, however, would not necessarily lead to a quashal of the venire.

The record is not very clear as to the reason why the' juror, W. C. Parks, was not summoned. If it was be- ' cause he was supposed, or even known, to be exempt, or. disqualified, that was not sufficient excuse for the sheriff to fail to summon him. That was a question for the court to consider of.

In the charge to the jury the court said : “So far as the evidence appears, it is murder; it is murder beyond all doubt. His own counsel do not claim he is not guilty of murder.” In Cooley, Cons. Lim. (6th Ed.), 392, that great jurist employs this language: “A judge is not justified in expressing his convictions to the jury that the defendant is guilty under the evidence adduced.” Murder, with us, has different degrees. If ojinsel, in argument, should concede the client’s guilt of the offense charged, and only contend for a mitigation of the crime to the less heinous degree, we do not doubt the right of the court to repeat to the jury what counsel had admitted. Beyond this the court should not go. As shown in the record, the court erred in giving this pharge.

The court also charged the jury as follows : “Murder in the second degree is the unlawful killing of another with malice aforethought, without the premeditation and deliberation of murder in the first degree.” There can be ho question that the facts hypothesized in this charge would constitute murder in the second degree. Any homicide which would be murder at common law, if not attended by all of the aggravating circumstances enumerated in our statute as constituting murder in the first degree, is murder in the second degree. — Code of 1886, § 3725. “Willful, deliberate,, malicious and premeditated killing, ’ ’ constitutes one species of murder in the fii*st degree, under our statutory classification. To come within this class, all of these properties, or qualifying adjectives must be found to have co-existed. — Mitchell v. State, 60 Ala. 26. The absence of any one of them, unless necessarily implied in the facts proved and found to exist, would reduce murder to the second degree. Hence, the absence of “premeditation and deliberation,” as asserted in the charge, or the absence of either of them, would reduce the offense to the second degree. So, ■the absence of willfulness and maliciousness, or either of • them, unless, as we have said, necessarily implied in the facts found, would have the same effect. In charging on the subject we are considering, it would be well to state all the qualifying adjectives, for the absence of any one of them reduces the homicide below the grade of mu,rd¿r in the first degree, unless it falls within one of the other classes of murder in the first degree, such as poisoning, lying in wait, &c. But, as we have said, the charge asserts a correct proposition of law. If there was apprehension it might mislead, ah explanatory charge might have been asked.

The charges asked for defendant were,- each of them, rightly refused.

Reversed and' remanded.