Mills v. State , 1 Ala. App. 76 ( 1911 )

PER CURIAM.

Section 32 of the jury law, in force at the time of this trial (Acts 1909 [Sp. Sess.] p. 318), among other things requires that: “Whenever any person or persons stand indicted for a capital felony, the court must on the first day of the term, or as soon as practicable thereafter, make an order commanding the sheriff to summon not less than fifty nor more than one hundred persons including those drawn and summoned on the regular juries for the week set for the trial of the case, and shall then in open court draw from the jury box the number of names required with the regular jurors drawn and summoned for the week set for the trial to make the number named in the order.” The record fails to show a compliance with the law, in that it fails to show how many, if any, names were drawn by the court, which, if added to the regular jurors for the second week, would constitute 100, the number fixed in the order. In other words, while the order, designates 100 persons as the venire to try the case, there is nothing to show that the court drew any special jurors at all, or from what and' in what manner the 100 persons,' other than the regular jurors for the second week, were to he had. The judgment entry does not show any drawing by the court of any number of jurors, as is required by said section 32 of the jury law. .As the record fails to disclose that this defendant was tried by a legal jury, this case must be reversed.

The only proof of venue was at or near a store at Haleburg. Whether or not we will take judicial knowledge that Haleburg is in Henry county is a question we need not decide, as the case must be reversed for other reasons, and the state ought to be more specific in proving venue upon the next trial.

Charge A, refused to the defendant, should have been given.— Segars v. State, 86 Ala. 59, 5 South. 558.

Charge B is without fault, and should have been given.

Charge C was properly refused. It pretermits the falsity of part of the-swearing.

Charges 58 and X, requested by the defendant, should have been given. They are similar to charge 1 in the case of Jackson v. State, 136 Ala. 22, 34 South. 188, and cases there cited.

Charge 26, requested by the defendant, was properly refused. The law is that, if a witness has been impeached, the jury may disregard his testimony, unless it was corroborated by other testimony. The charge says the jury “should,” disregard the testimony, and not that they may do so, and is unlike the charge held good in the case of Seawright v. State, 160 Ala. 33, 49 South. 325.

Charges 55 and Z, requested by the defendant, have been approved by this court and could properly have been given.—Bones v. State, 117 Ala. 188, 23 South. 138; Griffin v. State, 150 Ala. 53, 43 South. 197.

Charges 56 and 57, requested by the defendant, assert correct propositions, and could have been given.—L. & N. R. R. Co. v. Seale, 160 Ala. 584, 49 South. 323.

The trial court can, with propriety, give charges 60, 61, 63, 64, 65, and 66, requested by the defendant, if requested upon the next trial; but whether there was reversible error in refusing them we need not decide, as the case must be reversed for other reasons.

We do not deem it necessary to discuss the exceptions reserved upon the organization of the jury, since they need not, and doubtless will not, arise upon the next trial.

The judgment of the circuit court is reversed, and the cause is remanded.

Reversed and remanded.

Note. — The above opinion was prepared by Mr. Justice Anderson of the Supreme Court, before the transfer of the case to this court, and is adopted by this court