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04/14/95 NOBLE TRUCKING COMPANY AND DONALD RAY

April 14, 1995

NOBLE TRUCKING COMPANY AND DONALD RAY MENDENHALL
v.
ANGELA MAY PAYNE, AS ADMINISTRATRIX OF THE ESTATE OF BRIAN DAVID PAYNE, DECEASED



Appeal from Franklin Circuit Court. (CV-93-145). John Jolly, TRIAL JUDGE.

Application for Rehearing Overruled June 9, 1995. As Modified June 9, 1995.

Butts, Hornsby, C. J., and Almon, Houston, and Ingram, JJ., concur.

The opinion of the court was delivered by: Butts

BUTTS, JUSTICE.

Noble Trucking Company and Donald Mendenhall appeal from an order granting a new trial in favor of Angela Payne in a wrongful death case.

Payne, as administratrix of the estate of her husband Brian David Payne, deceased, brought this wrongful death action against Noble Trucking and Mendenhall, and the jury returned a verdict for the defendants. Payne moved for a new trial, alleging that one of the jurors was a convicted felon whose right to vote had never been restored. After a hearing, the trial court granted the motion. Noble Trucking and Mendenhall appeal. Noble Trucking and Mendenhall are hereinafter referred to collectively as "Noble Trucking."

The record shows that the jury venire was assembled to be qualified for jury duty in the Franklin Circuit Court on February 14, 1993, and that one of the attorneys for Payne was present during voir dire examination. The trial Judge asked the jury veniremembers if any of them was a convicted felon whose voting rights had not been restored. There was no answer from the jury venire, which included Bobby Holland, who had been convicted of a felony involving moral turpitude and whose voting rights had not been restored.

That jury venire then underwent voir dire in a criminal trial. The attorneys in that case did not ask whether any of the prospective jurors had prior felony convictions, and Holland served on the jury in that trial. The jury venire, including Holland, reassembled on February 18 for voir dire in Payne's civil case. Payne's attorneys, likewise, did not ask whether any of the jurors were convicted felons, and Holland served on the jury in Payne's case.

After the trial concluded on February 22, it was discovered that Holland's voting rights had never been restored after his conviction; the trial court granted a new trial in the criminal case, as well as in Payne's case. In both cases, the trial court held that the new trials were mandated, because Holland was not qualified under Ala. Code 1975, § 12-16-60, to serve as a juror. Section 12-16-60, provides, in pertinent part:

"(a) A prospective juror is qualified to serve on a jury if the juror is generally reputed to be honest and intelligent and is esteemed in the community for integrity, good character and sound judgment and also:

"....

"(4) Has not lost the right to vote by conviction for any offense involving moral turpitude."

Noble Trucking argues that it is not mandatory that the trial court grant a new trial merely because a convicted felon was a member of Payne's jury. Noble Trucking points out that Payne's attorney did not ask the prospective jurors whether any of them were felons whose voting rights had not been restored, and it concludes that Payne waived any right to complain of the disqualification by failing to exercise due diligence to ascertain Holland's qualifications under § 12-16-60.

In Beasley v. State, 39 Ala. App. 182, 96 So. 2d 693 (1957), the Court of Appeals reversed the conviction of a defendant who learned after trial that the jury had included a person who had been convicted of adultery. Under Code 1940, Title 30, ยง 55, in effect at that time, any person who had been convicted of a crime involving moral turpitude was disqualified from jury duty. When qualifying the jury, the trial court specifically asked whether anyone present had been convicted of a crime involving moral turpitude, and the convicted adulterer remained silent. The Court of Appeals determined that a conviction of adultery was ...


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