Opinion
8 Div. 621.
June 29, 1948.
Appeal from Circuit Court, Lawrence County; Newton B. Powell, Judge.
Kenneth McLemore was convicted of murder in the second degree, and he appeals.
Reversed and remanded.
R.L. Almon, of Moulton, for appellant.
In capital case trial court is not authorized to excuse jurors regularly drawn and summoned to try defendant before the day case is called for trial, in absence of defendant and without consent of his counsel. Code 1940, Tit. 30, §§ 5, 63, 64; Stinson v. State, 223 Ala. 327, 135 So. 571; Smallwood v. State, 235 Ala. 425, 179 So. 217; Crump v. State, 28 Ala. App. 103, 179 So. 392; Dodd v. State, 241 Ala. 152, 1 So.2d 671; Taylor v. State, 249 Ala. 130, 30 So.2d 256; Draper v. State, Ala.Sup., 36 So.2d 73; Hall v. State, Ala.Sup., 36 So.2d 74.
A.A. Carmichael, Atty. Gen., and Hugh F. Cuverhouse, Asst. Atty. Gen., for the State.
There was error without injury in excusing, before the opening of court, the juror who was a school teacher. For cases involving the question see — Stinson v. State, 223 Ala. 327, 135 So. 571; Smallwood v. State, 235 Ala. 425, 179 So. 217; Brown v. State, 33 Ala. App. 97, 31 So.2d 670; Id., 249 Ala. 5, 31 So.2d 681; Taylor v. State, 249 Ala. 130, 30 So.2d 256; Crump v. State, 28 Ala. App. 103, 179 So. 392; Dodd v. State, 241 Ala. 152, 1 So.2d 671; Waller v. State, 32 Ala. App. 586, 28 So.2d 815.
The indictment in this case charged Kenneth McLemore (appellant) with the offense of murder in the first degree, in that, he unlawfully and with malice aforethought killed William Reuben Burch, by cutting or stabbing him with a knife, etc.
From the record it affirmatively appears that the trial court, without the knowledge or consent of the defendant, excused Herbert A. McGregory from serving on the jury. Said juror had been regularly drawn and summoned in this, a capital case, to serve upon the jury, and as has been often decided, the court had no right or authority to excuse jurors so summoned, in the absence of defendant and without his knowledge or consent. The trial court erred to a reversal in this connection resulting in the necessity to reverse the judgment of conviction from which this appeal was taken and remanding the cause to the court below. Draper v. State, Ala.Sup., 36 So.2d 73; Hall v. State, Ala.Sup., 36 So.2d 74
Reversed and remanded.