Cook v. State , 134 Ala. 137 ( 1901 )

HARALSON, J.- — 1.

1. Three capital cases were set down for trial on the same day, and a special venire of 5.0 persons, to serve as jurors on the trial of .each case and for all of them, was drawn. The defendant moved to quash the venire “for the reason that no special venire had been ordered by the court and summoned by the sheriff for the trial of the defendant, but that the court had drawn, and the sheriff had summoned the special venire for all three of said trials,” which .motion was overruled. . . .

The present statute requires the court, to draw, “not less than .35.,nor more than 50 names for each capital case.” This requirement of the statute was not followed, but for some reason disregarded. It is unnecessary to .decide whether this error .of ordering one special venire for two or more capital cases set for trial on the same day would, be without injury requiring a reversal of the judgment, when .it affirmatively appears that appellant’s case was the first called and tried, and that he had the benefit of the full venire drawn. But, if so, such drawing, could only be sustained when this appears. Unless this is affirmatively shown, and not left to inference, the doctrine of error without injury cannot be applied. In this case, it is . not made to appear that the defendant had the benefit of the entire venire drawn for his and the other capital cases set for .trial at the same time, and this constitutes reversible error.

2. Section 5004 of the Code, which has reference to drawing and summoning special juries in capital cases, directs a list of the names of the persons drawn for the trial “to be immediately made out by the clerk of the court and an order issued to the sheriff to summon the persons so drawn to appear on the day set for the trial,” etc. It does not, in terms, require “the place'of residence and occupation of each person,” .to be specified on the list. It would seem, however, from the directions contained in sections 4989 and 4993, that it was the intention to have the residences .and occupations set out, when it may be done, so as to give that information to the deetfndant, and it would be well; while it is not mandatory, for this practice to be observed by clerks, when practicable. The provisions of these sections are directory, and it is now provided that ”no objection can be taken to any .venire for a petit jury, except for fraud in drawing dr summoning the jurors.” Code, § 4997. It is not pretended that there was any fraud in this case.

3. It was shown by the S bate that defendant, after the alleged crime, fled to and was apprehended in Montgomery. I.n rebuttal of this evidence the defendant-asked his witness, Whitehead, if, on .Saturday previous to the alleged robbery, he did not hear Mr. Lurie tell defendant to go and look ait his place, across the river, and if defendant had not just told t}he witness that he would look at the place, and if it did not suit him he would go right away to Montgomery. This .appears to have been abput a week before the offense was committed. He also sought, to prove by one Stewart that about a week before the alleged offense occurred defendant told him that the place he.lived at did not suit him, and that he was going off, to be gone about two weeks. The court refused to allow the proof in either instance. There was no error here. , The declarations of Defendant sought to be proved were remote from the time of the alleged offense, had no connection with .and formed no part of it, nor of any conversation or declaration ellicted by the State.

4. The defendant was found guilty of an assault with intent to rob. The crime of robbery generally includes an assault, and undeir1 an indictment for the greater, one may be convicted of the lesser offense. — Code, § 5306; Thomas v. State, 125 Ala. 45. The charge numbered 6 requested by defendant and refused, was, therefore, pronerly refused.

The general charge requested by him was properly refused, since the evidence was in conflict.

The 4th and 10th lay stress unon special facts and were subject to the vice of being argumentative.

For the error indicated the judgment below is reversed and the cause remanded.

Reversed and remanded.