Harper v. State , 113 Ala. 91 ( 1896 )

COLEMAN, J.

The defendant was tried and convicted of the offense of obstructing a public road. At the term of the court at which defendant was convicted, the court made the following order: ‘ ‘It appearing to the court, that by reason of the fact that the venire of petit jurors summoned for this term of the court, consisting of one week, has been quashed on account of not baying been issued and summoned as the law requires, it is rendered necessary to form two entire juries. It is, therefore, ordered by the court that the sheriff proceed to summon from the bystanders or from the county at large twenty-four jurors to serve as petit jurors for the present term.” Under this order, two juries were summoned and impannelled. No question is made as to the validity and regularity of the order quashing the original venire, and we do not consider it. This order was made upon motion of defendant. After the order had been made and the venire summoned as directed, the defendant moved the court ‘ ‘to quash said order or venire, for that it was without authority of law, in that said court had no aufchoritjT in law, express or implied, to issue an order or venire, except for completing a regular organized jury,” &c., which motion was overruled, and the defendant excepted.

The court proceeded under a special statute relating to proceedings in the county court of Shelby county. Acts of 1894-95, p. 1088. Sections 11 and 12 of said act, p. 1092, read as follows :

“Sec. 11. Beit further enacted, That when by reason of challenges, or any other cause it is rendered necessary, the court may cause jurors to be summoned from the by-standers or from the county at large to supply any deficiency in a regular jury, or to form one or more entire juries as the occasion may require, and each tales-man, when called to complete or fill up a regular jury when organized at the beginning of the term, may be required to sit during the week for which the regular jury was drawn, but if called after the jury is organized they can only be required to serve during the day for which they were respectively summoned, unless detained longer in the trial of an issue submitted to the jury of which they are members, or unless they are resum-moned.

“Sec. 12. Be it further enacted. That during any term of said court if both the juries summoned to serve should at the same time be absent deliberating upon cases submitted to them, and the court should not be able to proceed with the business without a jury, the judge may order another jury to be summoned instanter from the bystanders or from the body of the county to serve as jurors until one of the regular juries should return a verdict, or until the cause for which such special jury were summoned is ended.”

We are of opinion that the provisions of section 11 are broad enough to cover the case, and authorized the court to organize the petit juries for the week. This seems to be the principal question in the case, but we find one other in the record, which will be considered, although the appellant has not aided the court with either argument or brief.

There was evidence tending to show that the road in question had been used by the public for more than forty years, and that it had been dedicated to the public. The road was known as the Dunlap road, and a Mr. Dunlap, it seems, was in possession, and there was evidence tending to show a dedication by him. A Mr. May succeeded Dunlap. There is evidence, that May at different times made slight alterations in some parts of the road, but which added to the convenience of the public. At no time had the road been changed at or about the place where it was obstructed by defendant. This statement of facts authorized the giving of charge No. 1 for the prosecution.

Charge 8 requested by the defendant assumed that May was the- original owner. It also invades the province of the jury. Furthermore, if the road had been dedicated to the public either .by Dunlap or May, and so accepted by the public, a mere change in some parts as to direction, as shown by the evidence, would not, as a conclusion of law, show a “reclamation” by the owner; and again, if the road had become a public road in fact, by dedication, neither May nor any one else had the power to deprive the public of its use, or destroy its character as a public road. The evidence in some material respects is different from what it was on the former appeal. Harper v. State, 109 Ala. 66.

Affirmed.