The Montgomery advertiser., 1903-02-06

l upon any substantial right of the de- tenuant; and would in no wise prevent ai Ialr ana impartial trial The statute law requires several things to be done to properly get capital case to trial, all | are important but mostly clerical in their nature. A strict compliance with them | requires care and close attention: as most men, if not all. are liable to commit | errors. 1t sometimes occurs because Of | inaccuracy in the effort to comply with the statutory requirements, the case is necessarily continued. A better way to persent this phase of the question would qu!rements. and some instances Of failure to comply which have caused delay.
 | ply which have caused delay.
 | Section 5273 of the Code requires that a copy Of the indictment, and copy of l the venire for his trial must be served on the defendant or his counsel at least one entire day before the day set for his l tr!ai. Construing this statute, the Su- preme Court has held that copy of the | indictment means a literal copy. Mutt g i case, 63 Ala, 1S0, Stone, Judge. In the Mutt case the indictment was for killing one Hodnett, and the clerk in making the copy wrote the name of the deceased Hadnett, instead of Hodnett The trial court refused to postpone the case on account of this discrepancy: the Supreme l Cont held that the refusal to postpone 1 was reversible error In another case the indictment was one for murder, the clerk, in making the copy wrote mace. ' for the word malice. This discrepancy
 
 nent Of trial. There arc other cases on the same line. These are slight errors, | but when 1t is considered that the stat ute is mandatory. it would seem that the | supreme Court Is correct in the con- l struction put on the statute. But when l We consider that the purpose of the stat | ute is to inform the defendant of the charge made against him and of the | names Of the persons who compose the | venire. it would seem that substantial | compliance is all that the law requires, i and that slight discrepancies should not be cause for postponement. discrepancies l which do not affect the right of the de- | fendant to fair trial. l do not think 1t can be said that the discrepancies men- ! toned above were calculated to misead the defendant and his counsel. or to af- 1 feet his right to a fair trial. But as before said. the statute Is mandatory and the Supreme Court ruled correctly. The l courts do not make statutes. It occurs to me that statute providing that 1t shall be left to the discretion of the trial Judge to be cautiously exercised. to deter | mine whether or not such discrepancies as those cited above would in the case on trial affect the defendant injurious:. | mgnt With propriety be enacted by the | Legisa ture.
 When capital case Is set on day in | the hrst week of a court. which has n | two weeks term. for trial on day in | terms of the statute the venire must be | composed of the jurors who are drawn and summoned for the second week. and the special jurors (not less than twenty | ilve nor more than fifty) who may be | drawn by the presiding judge for the particular case. Tn drawing the names of the special jurors from the box, it some times occurs that the judge gets the name | or special juror who Is already sum 1 moned for the second week as a regular l juror. this may not be detected and the | name is embraced in the copy to be served on the defendant. as a special and nr xI, Jto.& &k%. l name and leaving the number of the ju- | TOTS served on the defendant one less | than the number fixed by law for the | venire. The court construng this statute l holds that on motion by the defendant this is good ground for a quashal of the | venire.
 McQueen's case. 9i Ala. 50; Darby,s case i92 Ala, 9.
 week term. the venre in, a capital case | must consist of the special jurors which may be drawn by the presiding judge, and the regullr jurors orga ganized for the that if juror who was summoned as a regular juror for that term. but who Was excused in the organization of the court: is included in the list served on the defendant, this is good ground for a quashal of the venire. Goley's case S5 Ala. ;233; Breden's case, SS Ala, 70. Again. the Sheriff sometimes makes a l mistake and returns juror not served on I ed. The statute says those drawn and summoned shall be included in the ye- nire provided the case is set for trial on day in week subsequent to the week | when the day for trial is fixed. On the | first day of the week In which the day 1 for the trial is included, the juror re- l turned not served appears for service
 having Ten duly served. But his name | mas been left out Of the copy served this has been held to be good ground for 1 postponement And including in the copy | the name of one drawn but not ser, ed . IS held to be good ground for quashal of | the Nenire. Smiths case 31 Su Rept 9l2: ] Ryans case. 10O Ala l0S
 We nave a statute, Section 50O7 of the Code which provides that mistakes made Tn the name of any juror summoned | Tor the trial of a capital case. is not suf- hcient cause for dlIashal of the vcnire or l 10 delay or to continue the case unless | the court in its discretion. is of the opin- | Ion that the ends of justice require; but the court must in such case direct the names of such persons to be discarded, and others to be forthwith summoned by the Sheriff from the qualified citizens; | and the persons 70 summoned snail he alsposed Of In the same manner as if | they had been summoned in the first | instance. The defendant is not entitled to a list of the jurors thus summoned but | may peremptorily challenge them in ad- dislon to the challenges allowed by law.
 similar statute can be enacted by the Legislature. and thus close the sev- eral "loopholes'' mentioned above for continuance, and lesson the prohahifitics of delay in trials of capital cases.
 That continuances increase the prohs-
 oilities Of acquittal. cannot be denied by any who are at all familiar with the trial I or such cases One more suggestion and
 am through. Our list of exemntions
 from jury service Is entirely too lonr.
 Every patriotic citizen ought to be wifi | Ing to do jury service. None but inc by statute or the judges. as cause for exemption or excuse. The exemption list should be revised in1 curtatled
 Of course it is said, and with truth l that 1t Is important, and q great accom-, medallion to those who 1re now by law. rem such servie.. Yet IL is doubtless of as much or more important and interest l to those exempt. that they should aid in l administering juSti ro in the courts In our cHorts to close up what We may con ce!Ve to be loop1oles in the law. We Shou'o pc conserv itve. fest We swing | tD" pendulum too lar the other way we | sh iuld lor1ember that tha Constitu.inn | guarantees to the citizen liberty as , n | as ire. ana that courts are not orpan | lzed for the purpose of convict 17s ~biit | Tor the purpose of administering justice ana the only true theory for the courts ! to adopt. and which the law sanctin1s is that the innocent shall go free ann those proven to be guilty shall be con | Vlctei and suffer punishment
 l Tn conclusion. l want to emphasize my. oehet Tn the position taken !,y Judge Stone on this very important question. l The fault is not with the law so much | nor with the courts. but in the jury box Of course thls means that the neonIa are l responsible, because the juries are taken 1 from amongst the peoIHa. The true rem cay TOT the evil Is in the generation of