Cole v. State , 105 Ala. 76 ( 1894 )

HARALSON, J.

1. The juror, Wright, was' one of the number summoned specially to try this case, and his name was on the list which was served on defendant for his trial. While in attendance for this purpose, he was summoned by the sheriff and was taken for the trial of another cause, of the nature of which we are not informed. The jury on which he was placed was out, at the time this case was called. The court asked the defendant, if he waived his right to the juror, but he refused to do so, and claimed the privilege of having said juror for the trial of his cause. The court proceeded to organize the jury without him, against the objection and exception of defendant; and in this there was no error.—Kimbrough v. The State, 62 Ala. 248; Redd v. The State, 69 Ala. 256; Shelton v. The State, 73 Ala. 8.

The case of Evans v. The State, 80 Ala. 4, is not in conflict with this ruling. The statute under which the jury-in that case was organized, as there construed, required a separate, and distinct venire for each capital case, if more than one was set for trial on the same day. The statute under which the jury in this case was organized, different from that, requires not less than 25, nor more than 50, special jurors for each capital case that may be set for the same day, and these, “together with the panel of petit jurors organized for the week, shall constitute the venire from which the juries to try said capital case or cases shall be selected.” (Acts of 1887, § 10, p. 156 ; Cr. Code,p. 134.) Here but one venire is required, though there may be more than one such case set for trial on the same day.—Chamblee v. The State, 78 Ala. 466.

2. The defendant moved to quash the venire, on the ground, that all - the jurors drawn and summoned for his trial were stricken from, and were not on, the list of jurors served on him, and because the list fails to show the residences of any or all of said jurors. The record shows, that thirty persons were drawn and summoned for the third week of the term, and all were summoned except three, whose names are given and they were returned not found, and one of those summoned, did not appear. The proof showed, that the list served on the defendant as the venire for his trial, contained the thirty names, drawn for the third week, with the three marked, not found, and one other, who was absent, (for there were 26 present) with a pen mark run through their names, showing plainly enough, they were not on the venire. The three marked not found, were 1, 2 and 3 on the list, and the absent one was 10. Opposite No. 1, was writteu “Beat Nine,” as the juror’s place of residence, followed by the word, “farmer,” to indicate his occupation. Then came, on the next line, the name of the juror numbered 2, followed by the words, “Beat Nine,” and under the word “farmer,” on the line above, to indicate his occupation, was a ditto sign made thus : ” ; and so of Nos. 3 and 10, and of all, down to No. 23, and that juror’s occupation was written as being that of a merchant. At the end of each of the three lines Containing the names of Nos. 1, 2 and 3, were the words, “not found,” and these words were omitted, at the end of the line containing the name of No. 10. All four of these names had a pen line drawn through them, from one end of the line to the other, leaving the names of 26 special jurors, who were present, on the venire. This was a poor way for a clerk to make out a list of jurors to be served on a defendant. It would be better to write out the occupations of the jurors, and not indicate them by such signs as that employed in this instance, and not to have the list contain erased names. It ought to be a neat, legible, unscratched document, about which nothing is left in doubt. We hold, however, that the erasure of these names, and the signs employed to indicate the occupations of the jurors, indicated plainly enough what they were used for, and the defendant and his counsel were not misled thereby. The objection is technical, but not meritorious.—Jones v. The State, 104 Ala. 30. The same thing may be said of the next objection to the venire, that the Christian names of a number of the jurors'were not written in full, but indicated by initial letters. — Code, § § 4314, 4322.

3. Before the dying declarations of deceased were made to Linehan,by whom they were proved, deceased stated to the witness, that “he would die; he could not get well” — and after telling him, twice, that he could not get well, stated that “Bethel Cole [the defendant] shot him.” There was no error in the admission of this evidence. It indicated he believed himself to have been fatally injured.

4. The declarations to the witness, Jones, were admitted upon no other predicate, than that deceased appeared ‘ ‘to be suffering and was praying ; * * * that he said he was in pain, appeared to be suffering very much, was praying to God to help him, and to have mercy upon him.” We have ruled so often on the -subject of dying declarations, to show that they are not admissible, alone, upon such a predicate as here laid, we will not repeat the rulings.—Justice v. The State, 99 Ala. 181; Blackburn v. The State, 98 Ala. 65.

5. There was no error in the admission of the confession as made, by defendant to. the witness Gass. - A sufficient-predicate- was laid- therefor.

6. There was no error in allowing the affidavit of Brown to be introduced' in evidence to contradict his evidence on the trial. The two statements were in direct conflict.

For the error pointed out the case must be reversed and remanded.

Reversed and remanded.