Cunningham v. State , 19 Ala. App. 171 ( 1923 )

The defendant was indicted and tried on an indictment charging assault to murder and was convicted on the lesser charge of assault and battery and fined $500.

There were no exceptions reserved to the rulings of the court during the progress of the trial; but after conviction defendant made a motion to have the verdict of the jury set aside and for a new trial on two grounds, viz.: (1) Because one of the petit jury trying the defendant had been a member of the grand jury returning the indictment and had been allowed to serve as a petit juror because defendant did not know of his disqualification at the time the jury was selected. (2) Because, during the oral argument of the solicitor, he used this expression:

"Gentlemen of the jury, down there at Montevallo where this thing occurred is located the state school for girls. Do you want to turn this defendant loose to go back down there?"

The court overruled defendant's motion, and this action of the court is urged as revisable error.

If the juror had been challenged for cause at the time of the selection of the jury, the court would have set him aside. Birdsong v. State, 47 Ala. 68; Finch v. State, 81 Ala. 41,1 So. 565. Such challenge must be before the jury is sworn and before the commencement of the trial. After the jury is impaneled and sworn, a challenge because a juror was a member of the grand jury returning the bill comes too late. Harris v. State, 177 Ala. 17, 59 So. 205.

There was no objection to the remark of the solicitor at the time it was made nor at any time during the trial. To be available as reversible error the remark of the solicitor must be objected to in the court below, the objection overruled, and exception reserved. Bean v. State, 18 Ala. App. 281, 91 So. 499; Cross v. State, 68 Ala. 476; Birmingham Ry. L. P. Co. v. Drennen, 175 Ala. 338-350, 57 So. 876, Ann. Cas. 1914C, 1037.

We find no error in the record, and the judgment is affirmed.

Affirmed.