Thomas v. State , 134 Ala. 126 ( 1901 )

•DOWDELL, J. — The

The jury in this case was organized and impaneled under a special law approved March 2d, 1901, entitled an act “To more effectually secure competent and well qualified jurors in the county of Montgomery.” — Acts, 1900-1301, p. 1994. Section 10 of this act, pages 2002-3, contains the following provisions, viz.: “Provided, that if at the time appointed for the trial of the capital case a jury should not he made of those who are summoned and appear, the presiding judge or associate judge, as the case may be, shall draw from the jury box such number of names as he may deem proper to complete said jury, and additional names may be so drawn as often as may be necessary, 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 or associate judge- be relieved from attendance on said trial: Provided further, * * * * ; and upon the trial of any cause in either of- said courts a juror who has been drawn and summoned and is in attendance upon the court and whose' name is drawn for the trial of such cause shall be found to be upon a jury which is considering a verdict in another cause, it shall be no objection to proceeding with the trial of the cause in which his name is drawn as a juror, nor for the continuance of such cause, nor shall either party have the right to call such juror from the jury that he may have an opportunity to pass on such juror, but the name of such juror1 shall be laid aside and the drawing of the jury proceed as in the absence of a juror who is summoned and fails to appear.”

It Is manifest that the purpose of these provisions in the statute was to prevent delay in the due administration of the law in the trial of capital cases. It is the rule in the impaneling of a jury, tvhen the name of a juror is drawn and such juror fails to appear, to lay-aside his name and proceed with the drawing until the jury is completed, or until the list of names is exhausted, and if the list be exhausted before completing the jury, then, in that event, to make the necessary order or order's for talesmen from which to complete the jury. It was not the purpose of the statute to deprive the defendant of the right to pass upon the jurors drawn upon the special venire in his case, except in the emergencies named in the statute, and then to avoid delay in the administration of the law, nor to confer on him the right to' have additional jurors drawn and sum■moned, to be substituted for those drawn on his special venire, when those, whose names had been drawn and laid aside because engaged in the trial of another cause, had returned into court a verdict and been discharged from such other cause, before an order had been made for' drawing and summoning talesmen. To allow such would tend to create rather than prevent delay, and thereby defeat the very purpose of the statute. In the present case, the jurors whose names were drawn and laid aside because engaged at the time in the trial of another cause, came in with a verdict in such case and were relieved from that case, before any order for tales-men was made in the case at bar. There was no delay created by their absence in: the discharge of their duties, and therefore no necessity arose for making an order for the drawing and summoning of talesmen to compute the jury. The bill of exceptions recites that the list of names was exhausted before the jury was completed, and that, thereupon, the jury upon which were those jurors, whose names had been drawn and laid aside, came into court with a verdict. Or in other words, imr mediately upon exhausting the list, these jurors whose names had been drawn and laid aside came in and were ready to answer, in this cause. The court gave to the defendant the option of passing upon these jurors in the order in which their names had been drawn from the hat, or of replacing the names in the hat and again drawing. The defendant declined to do either, but demanded that the names of additional jurors be drawn and summoned. ■ This the. court refused, ■ and um cted these names, that is the names of the jurors which had been laid aside, to be put again in the hat, and f .r ■ the drawing to- proceed. From these jurors -the jury in the case was completed. It will be observed that the defendant obtained a jury to try his case, from the special venire drawn and summoned for his case. This v, as all that he was entitled to under the law, and the court committed no- error in. its rulings in this respect.

There, was sufficient evidence from which the jury might havé reasonably inferred the defendant’s com-plicity in the crime committed by Jenkins.' The evidence without dispute shows that he went to the place where the robbery was committed in company with Jenkins, that he left the scene soon after Jenkins left, and was afterwards on the same day seen at the- house of one Jackson in company with said Jenkins, though defendant says, that he did -not go there with him, but did speak to Jenkins on this latter occasion, and that he got none of the spoils of the robbery. He was spoken of and to, at the time of the alleged robbery, as the friend of Jenkins, and was so recognized without any denial on his part of such relationship. The evidence does not show that the defendant in what he did, acted under compulsion from fear of death or serious bodily harm to himself; the most that can be said of it is, that he acted under the request or command of Jenkins. There is not the slightest evidence that he was threatened in any way by Jenkins, with death or great bodily harm, if he, defendant, failed or refused to obey his request or command. Noir was there any objection or remonstrance by thé defendant. That the act was done under the command of a, superior, furnishes no excuse or justification in a charge for robbery. See 10 Am. & Eng. Ency. Law (2d ed.), page 317, and notes, where the question is discussed and authorities cited. We are not to be understood as intimating in what is said above, that the defendant would have been excusable, if he had acted under duress, of life or great bodily harm. The facts ini the case do not present this question, but merely that o‘f one acting under the request or commaud of another. The only threats that Avere made by Jenkins Avere directed to those Avhom he had “lined up,” and upon Avhom he held his pistol, and the defendant Avas not one of these. The bill of . exceptions recites “that it Avas testified in defendant’s behalf that Jenkins made him search the parties and do Avhat he did,” ard in this connection, it is further slioAArn, that the defendant testifying as a Avitness in his own behalf SAVore, “that, the part he took in the affair Avas at the command of Jenkins while he had the pistol in hand, and that he got none of the money taken.” There is no pretense of a threat to life or limb by Jenkins tOAvards the defendant, and taking this evidence in connection Avith the undisputed -evidence, showing that the defendant was a friend of Jenkins, there is nothing to authorize the inference that the defendant acted under duress of life or great bodily harm, when he Avas told by Jenkins to search those AAdiorn he, Jenkins, had “lined up;’ and upon whom he held his pistol.

There was no error in the refusal of the Avritten charges requested by tire defendant. Finding no error in the: record, tin1 judgment will be affirmed.