Mackey v. State , 186 Ala. 23 ( 1914 )

SAYRE, J. —

The motion to quash the indictment was properly overruled.-—Agee v. State, 117 Ala. 169, 23 South. 486; Bryant v. State, 79 Ala. 282.

The name Ernest E. Frost appeared upon the venire of jurors summoned for the trial; his occupation being stated as that of a miner, his residence as at Blocton, beat 11. When that name was called a person answered and qualified as a juror, nothing being said about his name. After names had been stricken alternately by the state and defendant, according to- the statute, this name remained as one of the selected 12. The defendant then objected to the juror on the ground that his name was Emmett E. Frost. The juror, being sworn, testified that his name was Emmett E. Frost, and that he had never been known or called by the name of Ernest E. Frost; that he was a miner and lived at Blocton in beat 11; that he knew all the Frosts, but knew nothing of any Ernest E. Frost; that he had a brother, Ernest Frost by name and a blacksmith by trade, who had lived in another county for the last 8 or 10 years. Thereupon the court gave defendant a choice between the juror Frost and the person summoned whose name had last been stricken front tbe list. Defedenant declined to accept as a juror the person last stricken, whereupon the court ordered the trial to proceed with the juror Frost in the box. Defendant excepted.

For aught appearing, defendant was informed of the mistake in the juror’s name during the time the list was being reduced to 12 by alternate striking. Nothing appearing to the contrary, it will be presumed that such was the case, and that defendant waived the objection by not making it before the jury was agreed upon. But apart from the particular ground of waiver, there was no error. For if it be assumed that defendant was not informed of the mistake until the moment of the objection, and that, if he had known the juror’s full and true name he in his turn would have stricken the name “Frost” from the list, and, further, that the court, if it had been informed and its ruling to that end had been invoked by defendant, would not have put the juror upon the parties for choice or rejection, still the court restored every opportunity of choice defendant might have had in any event when it offered to- substitute the last juror whose name had been stricken for the juror Frost. The court did all defendant had a right to demand under the statute, perhaps more, and there was no error in its action.

Defendant’s plea in abatement of the indictment and his objections to testimony have been examined and found to be without merit.

There is no error in the record; the sentence of the law must be executed.

Affirmed. Sentence will be executed June 26, 1914.

All the Justices concur.