Walker v. State , 146 Ala. 45 ( 1906 )

ANDERSON, J.

§ 5005 of the code of 1896 reads as follows: “When the day set for the trial of a capital case or cases is a day of the same week in which the special jurors are drawn as provided in the preceding section, the special jurors so drawn, together with the panel of petit jurors organized for the week, shall constitute the venire from which the jury or juries to try such case or cases shall be selected; and when the day set for the trial is a day of a subsequent week of the term, the special jurors so drawn, together with the jurors drawn and . summoned for such subsequent week, shall constitute such venire.” The court convened March 13th, and on March 18th, which was Saturday of the first week, the trial judge drew the special venire and set Thursday, the 23d, as- the day for the trial. The judgment entry concludes as follows: “The sheriff was also ordered to serve a copy of the indictment in this case, together with a list of the jurors drawn and summoned for this week of the present term on the defendant or his attorney at least one entire day before the day set for the trial of this case, also a list of the special jurors drawn for the trial of this case.” The case being set for Thursday of the second week, the special jurors drawn by the judge and the regular jurors drawn and summoned for the second week of such term constituted the venire to try the case, and the jurors drawn and summoned for the week constituted no part of the venire. The order was made when this case was' set, and “this week” related to the first, 'and not the second, week, and was therefore erroneous. '

The bill of exceptions is not clear on the subject, but indicates that the sheriff Served- a list of' the jurors drawn for the second week, and the proof shows that the list so served contained four persons who were drawn, but not summoned. Said four persons, not having been summoned, were improperly served on the defendant, as they constituted no part of the venire to try the case.— Carwile v. State, (Ala.) 39 South. 220, and cases there cited.

The trial court did not err in putting the jurors objected to upon the defendant. They showed upon the examination that their opihiou was not so fixed as'to bias their verdict.

There was no merit in the motion to quash the indictment. The number of grand jurors was reduced below 15, and the trial court complied with § 5023 of the code of 1896 in completing the grand jury. It makes no difference that the number was increased to over 15.— Sanders v. State, 129 Ala. 139, 29 South. 841.

The demurrer to the indictment was properly overruled. The state had the right to aver the deceased by-different names in separate counts.

A sufficient predicate had been established to make the declarations Mrs. Dickinson made to Dickinson admissible. But what she asked him as to “whether the negro driver was married or single” was immaterial. The other evidence of Dickinson was competent as part of the res gestae. Nor did it require an expert to testify that Mrs. Dickinson was conscious.

The other objections are against the evidence of Mrs. Dickinson’s declarations as, detailed by different witnesses, and it is sufficient to say that a proper predicate was established in each instance to make her declara-' tions legal evidence.

For errors above designated, the judgment of the circuit court must be reversed, and the cause remanded.

Reversed and remanded.

Weakley, O. J., and Tyson and Simpson, JJ., concur.