Wilkinson v. State , 106 Ala. 23 ( 1894 )

HARALSON, J.

— The special law of Mobile county, (Acts of 1886 — 87, section 5, p. 203) provides, that the jury commissioners, charged with the duty of selecting the sixteen hundred persons prescribed, most competent in their opinion to discharge the duties of grand and petit jurors, shall, upon the completion of a roll or list of jurors, cause to be. prepared slips of strong white paper of equal size and texture on which shall be written, in a plain and distinct hand, the name of every person who has been entered on said roll — one person’s name being entered on each slip — and that all persons on said roll, resident within the city of Mobile, shall have written on the slips bearing their names, the word “City,” and all persons who reside outside of the city limits, shall have written on the said slips bearing their names, the word “County;” and one-fourth of all the names drawn by lot shall be placed in a box, called the circuit court jury box, and the remaining three-fourths, in what is called the city court jury box, from which boxes grand and petit jurors are drawn in the manner directed for these courts, respectively.

2. There was evidence tending to show, that two o, the slips drawn from the city court jurvbox in this casef had on them nothing except the names of the jurors, and did not have in connection with the names, the words, “city” or “county,” to designate the residence of the two jurors ; that nine of the 100 slips drawn, had on them, together with the names of the jurors, the letters, “Co.,” but none of the nine slips had on them, the word “county,” and that the other 89 had on them, with the names of the jurors, the word “city.”

Based on the requirements of the statute, for these reasons, after each side had announced ready for trial,' the defendant moved the court to quash the venire. The motion was properly overruled.. It was the duty of the commissioners, certainly, to comply with the requirements of the statute in making up the jury box — to write on the slips, not only the names of the jurors, but the word “city” or “county,” to designate the residence of the juror, whether living in the city or out of it, in the county; but, if they failed to discharge this duty, and made up the box, with the requisite number of names, written on slips of paper as required, and failed to write “city” or “county” against the names of two of the jurors, that fact would not invalidate their whole work in filling the boxes, making it impossible to draw a jury therefrom at all. Such a calamity for so trivial a reason, was never within the intention of the legislature. The 14th section of the statute in question provides, however, that the provisions of the act, in relation to the selecting, drawing and summoning of jurors, whether grand or petit, shall be construed as merely directory, so far- as the validity of the organization of such juries, shall be concerned. The defendants’ motion as applicable to the selecting, drawing and summoning of said jurors, for the failure of the two slips to have the words “city” or “county,” written upon them, was rightfully overruled. — Gibson v. The State, 89 Ala. 126; Jones v. The State, 104 Ala. 80. Nor, was there any merit in,the objection to the panel, that opposite the names of a number of jurors, the abbreviation, “Co.”'for county was employed, instead of the word written in full. While it is a bad practice, on the part of the officers, not to comply literally with the statute, in the preparation of these slips, yet, the objection here raised is too technical to meet approval. The letters, “Co.,” as used on these slips did not mislead defendant and his counsel. They knew well enough, as well as did every other person, what they stood for. — Jones v. The State, 104 Ala. 30, supra; Coles v. The State, 105 Ala. 76.

3. The objection that the defendants had not had served on them, one entire day before the trial, a copy of the venire drawn in their case, as required by law, is without merit. It rested alone upon the attempted showing, that the name of one of the jurors for the week on the venire for this trial, was not the name of said juror, as shown by the slip on which his name was written. The court inspected the list and ruled, that the name on the list was the same as it appeared on the slip — G. T. Duvall. The slip and list have been certified to us, and there is no disagreement. Indeed, it is difficult to see how the point was ever made.

■ 4. The verdict of the jury was for murder in the first degree, as to both defendants, with the award of life punishment in the penitentiary, and the sentence of the court, as it first appeared on the minutes, as to each separately, after reciting that he had been found guilty of murder in the first degree, reads : “It is, therefore, considered, and is so adjudged, that you be confined in the penitentiary of the State for life,” &c. This was sufficient, without more. — Gray v. The State, 55 Ala. 86; Wright v. The State, 103 Ala. 95. In the last named case will be found very full directions in respect to sentences to be pronounced in criminal cases. If these directions are followed, no mistakes can arise in the making and recording of sentences. The court, no doubt, out of an abundance of caution, two days after pronouncing judgment and during the term, amended the j udgment entry of the sentence, by adding after the words, “that you ” and before the succeeding words, “be confined,” &c., the additional words, “are guilty of murder in the first degree, and it is further considered and adjudged that you.” The omission of these words in the beginning, did not render the sentence insufficient or void, but it would have been fuller and more complete, if they had first appeared therein.

5. While the defendants were testifying, the solicitor had each of them to make a diagram, showing the relative positions of the parties at the time of the conflict. The defendant, Daniel Wilkinson, stated that he was not positive as to the exact distances, as he was not able to see distinctly because of the position in which he was being held by Edward Chastang, and that he could judge of the distances of the other parties, — Frank Chastang and James Wilkinson, — from him, only by sound. The solicitor in rebuttal, offered this diagram, to which the defendants objected, because the witness had testified, that he was not positive it was accurate. James Wilkinson in making his diagram stated, that he ivas not certain that it was correct as to distances, and and the defendants objected to its introduction, because of that statement. It will be observed, that the only inaccuracy suggested by either witness as to the diagrams, was that they were not certain that they were correct as to distances between the respective parties.

The rule, as stated in Campbell v. The State, 23 Ala. 83, is that a witness may use a plat, diagram or map, made in any way, to explain or make himself intelligible to a jury, though it can not go to them as evidence. — Shook v. Pate, 50 Ala. 92. But,, where the diagram is shown to be correct, there can be no objection to it as evidence. Bridges v. McClendon, 56 Ala. 335; Clement v. Pearce, 63 Ala. 284; Humes v. Bernstein, 72 Ala. 546. In this instance, the diagrams were made by the defendants themselves. They embody their representations and admissions of the relative situation of the parties implicated at the time of the killing. They were requested by the State for this purpose, and the defendants' did not pretend or state that they were inaccurate in this respect. They each said they wrere not certain or positive as to distances. Having made these diagrams, presumably, as fairly and correctly for themselves as they could, there was no error in allowing them to be placed before the jury by the State as a part of the evidence as testified by the defendants. — E. T., V. & G. R. R. Co. v. Watson, 90 Ala. 45.

6. There was no error in the refusal of the court to allovT the defendants, after the State had closed its evidence in rebuttal, to introduce evidence to prove relationship betw-een the State’s witnesses and deceased.

7. The ch arge requested by defendants, bad on several grounds, was subject to the glaring vice of seeking to have the court pass on the effect of evidence, competent alone for the consideration of the jury.

Affirmed.