Bailey v. State

• Decision Date: 18 May 1911
• Citation: 55 So. 601,172 Ala. 418
• Parties: BAILEY v. STATE.
• Court: Alabama Supreme Court

55 So. 601

172 Ala. 418

BAILEY v. STATE.

Supreme Court of Alabama

May 18, 1911

Rehearing Denied June 8, 1911.

Appeal from Criminal Court, Jefferson County; William E. Fort Judge.

William Moseley Bailey was convicted of crime, and he appeals. Reversed and remanded.

See also, 52 So. 1037.

Allen &amp Bell, for appellant.

Robert C. Brickell, Atty. Gen., and T. H. Seay, Asst. Atty. Gen., for the State.

SOMERVILLE J.

The defendant was tried and convicted on an indictment for carnal knowledge of a girl under 12 years of age. The indictment was found at the April term, 1909, of the criminal court of Jefferson county. The record shows that the jury commissioners deposited with the clerk of the court a list of 21 names drawn to serve as grand jurors at the April term beginning April 5th; that the clerk issued a summons for them on March 8, 1909; and that on April 3d the sheriff returned the writ with his indorsement showing that all of the venire named had been duly summoned. On April 5, 1909, the return day of the summons, the solicitor appeared in open court and moved the court to quash this venire on the grounds that the names of the persons appearing on the venire had not been drawn according to law; that said jurors were not drawn in the presence of the officers designated by law; and that said jurors were selected contrary to law by the jury commissioners of said county. The court proceeded to hear and determine the motion, and found, as shown by the judgment entry, that the names constituting the venire "were not drawn according to law, but were selected contrary to law, in this, that said jury commissioners drew from said jury box slips containing the names of, to wit, about 40 persons, and thereafter from said 40 names selected 21 persons whose names appear in the venire directed to the sheriff of said county to appear and serve as grand jurors on the 5th day of April, 1909." The order and judgment of the court was: "That said venire for said grand jury be and the same is hereby quashed, and the persons summoned thereunder are hereby discharged from further attendance upon court. Whereupon the court proceeded according to law to draw from the regular box the names of 18 persons qualified to serve as grand jurors, and the sheriff was thereupon ordered forthwith to summon said 18 persons so drawn by the court to appear and serve as such grand jurors on, to wit, the 12th day of April, 1909."

The indictment in question was found by this grand jury, and the objection to it, as presented by the defendant's motion to quash and the several pleas in abatement, is that it was an illegal grand jury, not authorized by law, as a result of which the indictment was void. The argument in this behalf is founded on the decision of this court in O'Byrnes v. State, 51 Ala. 25, wherein it was said, per Brickell, J.: "It is obvious that it is indispensable to the constitution of a grand jury (unless the particular case in which the court is empowered to form or originate a jury exists) that it shall be drawn by the officers having exclusive authority to draw it. When they have exercised the power, the power itself is exhausted. Their action is final, and not subject to the supervision or control of the court. The power of the court to form or originate a jury cannot arise when they have drawn the jury and it has been summoned."

The report of that case shows that the trial judge quashed the venire of his own motion because two or three persons whose names appeared therein were deemed unfit or ineligible by reason of a certain fact recited in the order. It will be observed that there was no irregularity nor illegality of any sort in the drawing or summoning of the venire; that the objection to the "two or three" persons was but fanciful; and that the action of the court in quashing the venire was without cause, and therefore arbitrary and unwarranted by law. The grand jury organized by the court from the venire...