Summary
In Petty v. State, 224 Ala. 451, 140 So. 585, 586, it is said: "The competency of witnesses of tender years rests largely in the discretion of the trial court.
Summary of this case from Jackson v. StateOpinion
7 Div. 65.
March 10, 1932. Rehearing Denied March 31, 1932.
Appeal from Circuit Court, De Kalb County; A. E. Hawkins, Judge.
Haralson Son, J. A. Johnson, C. A. Wolfes, and J. D. Pope, all of Ft. Payne, for appellant.
Appellant being charged with a capital offense was entitled to a special venire to hear the issues involved on his plea in abatement, such plea presenting one of the issues in the case. Code 1923, § 8644; Moss v. State, 16 Ala. App. 34, 75 So. 179; Whitaker v. State, 21 Ala. App. 114, 105 So. 433. The grand jury regularly impaneled is presumed to continue until dissolved by operation of law at the expiration of the term at which it was impaneled, or by an order of the court. Riley v. State, 209 Ala. 505, 96 So. 599; Caldwell v. State, 203 Ala. 412, 84 So. 272; Whittle v. State, 205 Ala. 639, 89 So. 48. Fraud in filling the jury box can be taken advantage of by plea in abatement to the indictment notwithstanding sections 8630, 8637, of the Code. Mullins v. State, 24 Ala. App. 78, 130 So. 527; Bell v. Terry, 213 Ala. 160, 104 So. 336; Ham v. State, 21 Ala. App. 103, 105 So. 390. A child who does not appreciate the obligation of an oath is not a competent witness. McKelton v. State, 88 Ala. 181, 7 So. 38; White v. State, 136 Ala. 58, 34 So. 177; Carter v. State, 63 Ala. 52, 35 Am. Rep. 40. Change of venue should be granted where defendant sustains the burden of showing that an unbiased verdict cannot reasonably be expected. Baker v. State, 209 Ala. 142, 95 So. 467; Thompson v. State, 117 Ala. 67, 23 So. 676. It was the mandatory duty of the court on the first day of the session, or as soon as practicable thereafter, to enter the order for special venire. Code 1923, § 8644; Tennison v. State, 188 Ala. 90, 66 So. 112; Waldrop v. State, 185 Ala. 20, 64 So. 80.
Thos. E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.
The provisions of the statute incident to the drawing, selection, and summoning, or impaneling of jurors are directory merely, and not mandatory. Ramsey v. State, 24 Ala. App. 83, 130 So. 674; Code 1923, § 8636. No objection to the indictment was available to defendant on account of the formation of the special grand jury. Code 1923, § 5202; Bailey v. State, 172 Ala. 418, 55 So. 601, 602. While it is held that a grand jury regularly impaneled is presumed to continue until dissolved by operation of law at the expiration of the term, the court is not denied the power of its own motion to discharge a grand jury. It is vested with authority to call a special grand jury; and even if the court did not expressly discharge grand jury originally drawn as shown by the minutes of the court, the impaneling of the special grand jury would ipso facto dissolve or discharge the first grand jury. Whittle v. State, 205 Ala. 639, 89 So. 43; Cochran v. State, 18 Ala. App. 403, 92 So. 524; Code 1923, §§ 8632, 8577, 8578. The evidence on the trial of the plea in abatement showed only minor irregularities in filling the jury box, which cannot suffice to invalidate the indictment. Garner v. State, 206 Ala. 56, 89 So. 69; Reeves v. State, 17 Ala. App. 684, 88 So. 197; Mullins v. State, 24 Ala. App. 78, 130 So. 527. Appellant had a special venire for the trial of his case on the merits, and there is no obligation to being put to trial on his plea in abatement before the regular jury. On motion for a change of venue the defendant has the burden of showing to the reasonable satisfaction of the court that an impartial trial and unbiased verdict cannot there be reasonably expected. Godau v. State, 179 Ala. 27, 60 So. 908; Malloy v. State, 209 Ala. 219, 96 So. 57; Riley v. State, 209 Ala. 505, 96 So. 599; Owens v. State, 215 Ala. 42, 109 So. 109; Hendry v. State, 215 Ala. 635, 112 So. 212; Crowder v. State, 18 Ala. App. 632, 93 So. 338. Delay in drawing a special venire is not ground for quashing the venire or for continuance. Scott v. State, 211 Ala. 270, 100 So. 211. The competency of witness of tender years largely within the discretion of the trial court. Puckett v. State, 213 Ala. 383, 105 So. 211; Godau v. State, supra; Carter v. State, 205 Ala. 460, 88 So. 571. There is no particular age recognized by law at which a child may in all cases be legally competent to testify. Bone v. State, 8 Ala. App. 59, 62 So. 455; Walker v. State, 134 Ala. 86, 32 So. 703.
Section 8665 of the Code of 1923 provides for grand juries, and for counties having less than fifty thousand population there must be not less than two grand juries for each year, and, when they have completed their labors, in its discretion the court may permit them to take a recess subject to the call of the judge of the circuit, or of the Chief Justice. As the court is given a discretion in the matter, this means that the court can recess the grand jury subject to a future call during the existing term or may adjourn or discharge them for the term. There seems to be some confusion in writing the minutes as to whether the existing grand jury was adjourned or discharged, and it is settled that, when a grand jury is organized, it is presumed to continue until the half yearly ending of the term, unless discharged by an order of the court. Caldwell v. State, 203 Ala. 412, 84 So. 272; Riley v. State, 209 Ala. 505, 96 So. 599. Here, conceding that it is doubtful whether the order made discharged or recessed the grand jury, yet, when the trial judge ordered a special call or session of the court and a special grand jury for same, this in legal effect, operated, ipso facto, to discharge the old or existing grand jury.
The trial court could have well sustained appropriate demurrers to the defendant's special pleas 1 to 9 inclusive, but, as this was not done, and as they were not proven, properly gave the general charge in favor of the State on this issue. The pleas, among other things, charge the illegality of the indictment or the illegality of the grand jury for the reasons therein set out, and, as a matter of fact, the things therein set out did not render the special grand jury or the indictment illegal, and the trial court was justified, as matter of law, in giving the general charge for the state as to the pleas in abatement.
True, section 8644 of the Code of 1923 provides that, when a person stands indicted for a capital felony, the court must on the first day of the term, or as soon as practicable thereafter, make an order for summoning a special venire, but the court is given a discretion as to when it is practicable, and, in this instance, the defendant got the benefit of a special venire upon the trial of the main case on its merits. But it is insisted that he was entitled to have the issues on his pleas in abatement also tried by the special venire. There may be force in this contention, but, as we view this case, the defendant was not thereby injured, for the reason that, had the issue been before the special venire, or the one which was selected to try same, the trial court could have given the general charge for the state. In other words, if, as matter of law, the pleas were not established, then no jury question was involved.
The competency of witnesses of tender years rests largely in the discretion of the trial court. Puckett v. State, 213 Ala. 383, 105 So. 211. While the child here was only six years of age, this, of itself, did not render her incompetent as a witness. Bone v. State, 8 Ala. App. 59, 62 So. 455; McGuff v. State, 88 Ala. 147, 7 So. 35, 16 Am. St. Rep. 25. The answers of the witness on the voir dire seem to come up to the standard heretofore approved. Walker v. State, 134 Ala. 86, 32 So. 703.
As to the failure of the trial court to grant a change of venue, we do not think the evidence in support of same or the existing facts and circumstances were such as to put the trial court in error for overruling the motion.
While we have discussed only the questions argued in brief of counsel, we have not overlooked the statute requiring a consideration of the entire record, and have found no reversible error.
The judgment of the circuit court is affirmed.
Affirmed.
GARDNER, BOULDIN, and FOSTER, JJ., concur.
On Rehearing.
Counsel, upon application for rehearing, stress for error the refusal of defendant's charge J. 26, which said charge was not specially treated in the opinion. It is sufficient to say that said charge was substantially covered by given charges 49 J. and 50 J.
The rehearing is denied.