This is an appeal from a judgment granting a motion by defendant for a new trial.
Ground No. 41 of the motion is the single ground on which the new trial was granted, and all assignments allege as error to reverse the granting of the motion on this ground. Ground No. 41 reads:
The real question, as we see it, is one of identity; that is to say, was the individual listed on the jury roll and the individual who was summoned and who served upon the jury on the trial of the case one and the same person? In Taylor v. State, 222 Ala. 140, 131 So. 236, it was held that where one juror whose name was on the jury roll was drawn but another and different person was summoned, and served on the trial, this substitution, though innocent, constituted ground for a new trial, such substitution being unknown to the injured party or his attorneys and no lack of diligence being shown. See also Dorsey v. State, 19 Ala.App. 641, 99 So. 830. In the Taylor case the lack of identity between the person drawn and the one summoned and serving was clearly established. Although their names were identical, their occupations and addresses were different.
In the case at bar the question of identity was the subject of conflicting evidence introduced on the hearing on the motion for new trial before the court below, and inferences, from such evidence. The juror was listed on the jury roll thus:
The venire prepared by the clerk listed the juror as follows:
The evidence showed that the person summoned and serving on the jury bore the name "Preston Senn" without other name or initial; that he resided on the farm of his mother, address: Brundidge, Route 1; that his occupation was farm work; that many years previously he, when "just a boy" had had temporary employment ("about a week") with Carter Brothers, but was not working there at the time of summons and trial.
As to the other Senn, it appears that his full name was Charlie Preston Senn; that he had been employed by Carter Brothers for several years, though temporarily laid off at the time in question, and lived on property belonging to Carter Brothers and
As we have shown, the trial judge reached the conclusion that Charles Preston Senn was the individual upon the jury roll and venire, and that Preston Senn was erroneously, though innocently, substituted and served. The trial court was in a more advantageous position than this court, being familiar with the locality and its people, and having the two persons and other witnesses personally before him to determine the true status and identity of the two Senns. In the circumstances we would be unauthorized to substitute our judgment for that of the trial judge and reverse his order granting the new trial.
Appellant takes the position that appellee, defendant below, was derelict in not developing the true identity of the juror who was drawn and served. In Taylor v. State, we pointed out that failure of the injured party, on voir dire, to question a juror as to his occupation, being wholly unaware of a substitution did not give rise to a waiver. It is also insisted that the substitution, if so, was innocent and that no injury resulted therefrom. Again, in the Taylor case, we held that even innocence did not render harmless a substitution of a person not drawn for another drawn as a juror, and we declined to consider the "atmosphere" of the case, as did the trial court, to determine harmless error. In the case of Dorsey v. State, supra, cited with approval in the Taylor case, supra, the Court of Appeals held that substitution would not be ground for quashing the venire, but declined to apply the rule of error without injury in passing upon the motion for new trial where it was shown that defendant was not tried "by a legally drawn jury". [19 Ala.App. 641, 99 So. 830.]
Appellant argues that in a civil case a new trial will not be granted because of an innocent substitution of a juror unless prejudice is shown from such innocent substitution. Rule 45, Supreme Court Rules of Practice, and a number of out-of-state cases are relied upon. In Alabama we have declared no distinction between a criminal case and a civil case in the matter of showing injury by a substitution of jurors. Nor do we see any sound reason for such a distinction. In either case the issue has not been tried by a legally drawn jury. This Court in Taylor v. State, supra, quoted with approval from the case of McGill v. State, 34 Ohio St. 228, wherein the rule stated, and followed in the Taylor case, was held applicable to the trial of a cause either civil or criminal.
There was one other ground of the motion for new trial, but the trial court based its judgment upon the ground hereinabove treated. Neither party in brief argues this
LIVINGSTON, C. J., and GOODWYN and COLEMAN, JJ., concur.