Andrews v. State
| Decision Date | 08 April 1977 |
| Parties | In re James ANDREWS v. STATE of Alabama. Ex parte STATE of Alabama ex rel. ATTORNEY GENERAL. SC 2372. |
| Court | Alabama Supreme Court |
William J. Baxley, Atty. Gen., and Linda C. Breland, Asst. Atty. Gen., for the State, petitioner.
No brief for respondent.
In denying this writ we state the following with respect to the Court of Criminal Appeals' decision.
We agree that a demurrer is the proper procedure normally to raise defects in an indictment.
We further agree that the defect in the indictment here, i.e., failure to name the officer assaulted, does not make the indictment Void but Voidable merely and that it was properly raised here by motion to quash filed before trial but after arraignment. Thomas v. State, 277 Ala. 570, 173 So.2d 111 (1965); Ex parte State (In re: Williams v. State) (1977), Ala., 342 So.2d 1328.
WRIT DENIED.
Andrews was indicted for assaulting a police officer. The police officer was not named in the indictment. After a plea in bar of not guilty, Andrews, pleading specially (by oral motion to quash), attempted to raise the defect in question.
Defects which render an indictment voidable merely and not void have generally been considered to be waived unless properly raised by demurrer. The case of Thomas v. State and Ex parte State (In re: Williams v. State), supra, cited in the majority opinion, deal with jury venire composition; i.e., systematic exclusion of jurors because of race and age. The underlying considerations for the timeliness of objections to jury composition are different from objections to defects apparent on the face of the indictment. Defects apparent on the face of the indictment are easily noticeable before pleading to the merits is required; whereas, improper jury composition may not be discovered until after arraignment and sometimes involves constitutional questions. Thomas v. State, supra. Therefore, I do not consider the above cases controlling in this instance.
If this indictment is void for due process reasons, as I read the opinion of the Court of Criminal Appeals to hold, then a conflict exists with Adkins v. State, 291 Ala. 695, 287 So.2d 451.
Adkins holds that an indictment charging the sale of marihuana need not allege the vendee even when challenged by demurrer. The Court of Criminal Appeals holds that the assaulted police officer must be named or the indictment is void for due process reasons.
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Ex parte State, No. 1080395 (Ala. 8/21/2009)
...Crews v. State, 374 So. 2d 436, 442-43 (Ala. Crim. App. 1979); Andrews v. State, 344 So. 2d 533, 534-35 (Ala. Crim. App.), cert. denied, 344 So. 2d 538 (Ala. 1 97 7 ). Where an indictment is void and does not charge an offense, this Court is bound to take notice of such a defect even in the......
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Calhoun v. State
...cases of Harrison v. State, 384 So.2d 641 (Ala.Crim.App.1980), and Andrews v. State, 344 So.2d 533 (Ala.Crim.App.), cert. denied, 344 So.2d 538 (Ala.1977), in support of this In Harrison, the defendant was charged with violating the Child Abuse Act. The indictment did not state the means by......
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Ex parte State of Alabama. ,.
...Crews v. State, 374 So.2d 436, 442-43 (Ala.Crim.App.1979); Andrews v. State, 344 So.2d 533, 534-35 (Ala.Crim.App.), cert. denied, 344 So.2d 538 (Ala.1977). Where an indictment is void and does not charge an offense, this Court is bound to take notice of such a defect even in the absence of ......
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Nance v. State
...364 So.2d 416, cert. denied, Ala., 364 So.2d 420 (1978). See also: Andrews v. State, Ala.Cr.App., 344 So.2d 533, cert. denied, Ala., 344 So.2d 538 (1977). However, an averment of the means, although one of substance and not of form, is not a constituent or essential element of the offense. ......