[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 305 The statute provides:
"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, and shall cause an order to be issued to the sheriff to summon all persons therein named to appear in court on the day set for the trial of the defendant and must cause a list of the names of all the jurors summoned for the week in which the trial is set, and those drawn as provided in this section, together with a copy of the indictment, to be forthwith served on the defendant by the sheriff, and the defendant shall not be entitled to any other or further notice of the jurors summoned or drawn for his trial nor of the charge or indictment upon which he is to be tried." Acts Sp. Sess. 1909, p. 319, § 32.
This statute manifestly gives to one about to enter upon a trial for his life the right to have the court make an order definitely fixing on its face, or by reference to the record in the cause, the number of jurors constituting the venire for his trial, consisting of the names specially drawn by the court and the regular jurors drawn and summoned for the week in which the trial is to occur, as originally fixed by the order of the court setting the day of trial; to have a copy thereof, together with a copy of the indictment, forthwith served upon him, that he may have an opportunity to inquire into the fitness and qualifications of the persons from whom the jury for his trial is to be selected, and to have an order of court directing the sheriff to specially summon all persons on the list, including those drawn and summoned as regular jurors for the week in which the case is to be tried. These rights are recognized by the adjudged cases. Carmack v. State, 191 Ala. 1,67 So. 989; Daniel v. State, 14 Ala. App. 63, 71 So. 79; Waldrop, v. State, 185 Ala. 23, 64 So. 80; Tennison v. State, 188 Ala. 90, 66 So. 112; Harris v. State, 172 Ala. 413,55 So. 609; Jackson v. State, 171 Ala. 38, 55 So. 118; Bailey v. State, 172 Ala. 418, 55 So. 601; Andrews v. State, 174 Ala. 11, 56 So. 998, Ann. Cas. 1914B, 760; Edgar v. State, 183 Ala. 36, 62 So. 800; Zininam v. State,186 Ala. 12, 65 So. 56.
While the statute provides that:
"The jurors selected, drawn, summoned and impaneled under the provisions of this act, whether at an earlier or later day than this act requires, must and shall in all respects be deemed legal, and to possess in full in every respect, power to perform all of the duties belonging to grand and petit jurors. And no objection can be taken to any venire of jurors except for fraud in drawing or summoning the jurors" (Acts, supra, § 29)
— thereby limiting the approved practice of quashing the venire to the statutory grounds of fraud in drawing or summoning the jury (Zininam v. State, supra), this in no wise renders the provisions of the statute securing to the defendant the enumerated rights nugatory, nor does it leave the defendant without appropriate procedure to invoke the power and jurisdiction of the court to enforce these rights. This may be done, as was done in this case, by making an objection to being put to trial without compliance with the statute, pointing out to the court in such objection wherein there has been a failure to comply with the statute. Carmack v. State, supra; Tennison v. State, supra; Zininam v. State, supra. If such objection is well taken, it does not follow that the venire must be quashed, and the persons summoned as jurors discharged, but the objection can be met by an order of court compelling compliance with the statute.
To illustrate: The defendant objected in this case to being put to trial because a list of the names of the jurors for his trial had not been served upon him. This objection could have been met by staying the trial and passing the case to another day, and causing a list to be served. The clear *Page 307 intent and purpose of the statute is to avoid long delay in such trials resulting from quashing the venire and continuing the case, and yet afford the defendant ample opportunity to select an impartial jury for his trial. Daniel v. State, supra.
While the defendant's objection is designated "a plea in abatement," and was treated as such, on its face it purports to be nothing more nor less than an objection to being put to trial until the defendant was accorded the rights guaranteed to him by the statute. The manner in which the objection was treated by the prosecution justified the court in assuming that the facts stated therein were true, and that proof in support thereof was waived.
So the question is, Was the objection tenable? It appears from the record that the original venire returned into court on the 24th day of March, 1917, contained the names of 60 persons 59 of whom had been summoned. From this number, the court in the manner provided by section 18 of the act drew the names of 18 persons, who were impaneled as grand jurors, leaving the names of 41 persons to serve as petit jurors. The court thereupon organized from the names remaining two juries, and drew 4 names for a third jury. To complete jury No. 3, the court drew from the jury box the names of 9 persons, and the clerk thereupon issued a venire, directing the sheriff to summon the said 9 persons to appear in court as jurors, all of whom were summoned. After completing jury No. 3 from the persons so drawn and summoned, the court made an order excusing from service 14 of the persons drawn and summoned. Thereafter, and on a subsequent day of the term, the court made an order setting the defendant's case for trial on the 30th day of March, and in the manner provided by statute drew from the jury box the names of 50 persons as special jurors for the defendant's trial and ordered:
"Which said jurors, together with the regular jurors drawn and summoned for this the first week of this term of court, shall constitute the venire from which to select a jury to try these defendants; it is further ordered that the sheriff be authorized and commanded forthwith to summon all persons above specified to be and appear in the said court on the 30th day of March, 1917, and also to serve forthwith on the defendant a copy of the list of jurors summoned for this week of this court, together with a copy of the list of special jurors this day drawn," etc.
The contention of the appellant is that the list served upon him did not contain the names of the 14 jurors excused by the court; that they were a part of the special venire for his trial, and that in failing to serve him with the list as required by the statute and the order of the court, he was deprived of one of the rights guaranteed to him by the statute. In other words, the order of the court entitled him to a list of 100 games from which to select the jury, and the list served only contained 86 names. It requires no argument to show that the 14 persons who were excused by the court were drawn and summoned as jurors for the week in which the defendant's case was set for trial, and are clearly within the terms of the order of the court and the statute. The defendant's objections were well taken, and should have been sustained.
The appellant's contention that some of the evidence offered by the state to prove the killing affords an inference that he struck in defense of his sister, who was being murderously assaulted by the deceased, under such circumstances as entitled her to invoke the doctrine of self-defense; that this evidence was properly admitted under the general issue, along with evidence offered by the defendant to show his absence from the place of the homicide at the time the deceased was stabbed; that the constitutional right of trial by jury guaranteed to him included the right to have the jury pass upon the entire evidence in the case, and that it was unfair to the defendant for the court to seize upon certain phases of the evidence showing that he was not present at the time the deceased was stabbed, to deny him the benefit of the evidence tending to show self-defense, and yet hold him responsible for the crime. In other words, that when the court accepts as true the defendant's statement that he was not present and did not strike the blow for one purpose, he is entitled to have this truth carried to the logical consequence, his acquittal. See Love v. State, 75 So. 189,1 and Hornsby v. State,94 Ala. 66, 10 So. 522. A decision of this question is not necessary to a disposition of this cause, for the reason that the special charges seeking to invoke the doctrine of self-defense were well refused for other reasons:
Charge 29 is involved and misleading, and assumes that the circumstances were such as to impress a reasonable man that Lillie Cain was in imminent danger, and that the defendant entertained the honest belief of such danger, and imposed on the jury the duty of finding the negative of this proposition.
Charge 30 is faulty, in failing to define what constitutes apparent imminent peril, and in assuming that Will Cain entertained the honest belief that his sister was in imminent peril, and put upon the jury the duty of ascertaining that he "did not honestly entertain such belief."
Charge 31 assumes that Lillie Cain was in imminent danger of suffering grievous harm or death when the defendant interfered, and that the defendant interfered in defense of Lillie Cain.
Charge 32 is faulty in not hypothesizing the "existing necessity" as a necessity for the defendant to strike in defense *Page 308 of his sister, to save her from grievous harm or death.
Some of the tendencies of the evidence were that Lillie Cain entered into the fight willingly, and charge 34 pretermits a consideration of this fact. Turner v. State, 11 Ala. App. 8,65 So. 719.
Charge 35 is elliptical, in omitting the word "satisfied."
Charges 33, 36, 37, 39, and 43 were properly refused for not hypothesizing that the circumstances were such as to justify a reasonable man in the belief that Lillie Cain was in imminent peril. Jones v. State, 76 Ala. 17; Matthews v. State, 192 Ala. 1,68 So. 334; Reid v. State, 181 Ala. 14, 61 So. 324; Ragsdale v. State, 12 Ala. App. 1, 67 So. 783; Nail v. State, 12 Ala. App. 67, 67 So. 752; Thomas v. State, 13 Ala. App. 50,69 So. 315; Bluett v. State, 151 Ala. 41, 44 So. 84; Bluitt v. State, 161 Ala. 14, 49 So. 854. These charges are faulty for pretermitting the consideration that Lillie Cain entered into the fight willingly. Morris v. State, 146 Ala. 66,41 So. 274; Turner v. State, supra.
Charge 38 pretermits freedom from fault on the part of the defendant and his sister.
Charge 40 has been condemned. Diamond v. State, 15 Ala. App. 33,72 So. 558.
Charges 6 and 41 are argumentative. Cunningham v. State,14 Ala. App. 1, 69 So. 982.
Charges 8 and 28 were covered by the oral charge of the court.
Charge 42 has been condemned. Ex parte Davis, 184 Ala. 26,63 So. 1010.
Charge 44 does not define what constitutes self-defense, and was properly refused. Morris v. State, 146 Ala. 66, 41 So. 274.
Charge 1, given at the request of the state, asserts a correct proposition of law. Way v. State, 155 Ala. 52,46 So. 273.
In the absence of any evidence showing that the deceased was intoxicated at the time of the difficulty, the testimony sought to be elicited from the witness Lewis Scruggs that he had seen the deceased drinking that day was prima facie irrelevant. Killen v. State, ante, p. 31, 75 So. 177.
The evidence shows that the witness did not remain silent when the sheriff stated to him that he was arrested for killing Lucy Garrett, and upon another trial the statement of the sheriff to the defendant, as well as the statement of the defendant to the effect that the sheriff told him when he was arrested that he was charged with killing Lucy Garrett, and that the defendant replied he did not kill her, should not be admitted. The denial of the charge by the defendant renders this statement inadmissible. It is only where one charged with crime remains silent that it is construed as an admission against him. Rowlan v. State, 14 Ala. App. 17, 70 So. 953.
For the error pointed out, the judgment will be reversed, and the cause remanded.
Reversed and remanded.
1 Ante, p. 44.