Bell v. Terry
| Decision Date | 14 May 1925 |
| Docket Number | 4 Div. 214 |
| Citation | 213 Ala. 160,104 So. 336 |
| Parties | BELL v. TERRY et al. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Dale County; J.S. Williams, Judge.
Petition of Perry N. Bell for mandamus, to William H. Terry and others, as jury commissioners of Dale county. From a judgment denying the writ, petitioner appeals. Reversed and remanded.
Sollie & Sollie, of Ozark, and Farmer, Merrill & Farmer, of Dothan for appellant.
T.M Patterson, Solicitor, of Clayton, for appellees.
This is an application by petition by Perry N. Bell for writ of mandamus to the judge of the circuit court of Dale county, to be directed to the jury commissioners of the county. The petitioner by the application seeks to have the jury box of the county, as filled by the jury commissioners, declared illegal and void, and that they be required to empty and refill the jury box, and further, to have the act of the presiding judge of said court in drawing the venire from this jury box for the first week of the fall term, 1924, of the circuit court, declared illegal and void, and to have the indictment against petitioner for murder found and returned by a grand jury drawn by the presiding judge at that term of the court from that venire quashed and held to be illegal and void.
The jury commissioners did not demur to the petition, but filed an answer with the state of Alabama as intervener, in which they admit the facts averred, and allege they are insufficient to entitle the petitioner to the relief he seeks, and ask the court on the hearing to dismiss the petition. The court on the hearing, on the facts as averred and admitted, denied the petition, dismissed it, and taxed petitioner with the court cost. Perry N. Bell, the petitioner, appeals from that judgment, and it is the error assigned and argued.
Between the February term 1924, and August term 1924, of the circuit court of Dale county, the jury commissioners of the county met, caused the jury box of the county to be completely emptied of the cards containing names therein, and caused their clerk to furnish them (which he did) a list of the names of the male citizens of the county over 21 and under 65 years of age; they then passed upon and determined the qualifications of the persons whose names the clerk had placed on the list; they determined that 611 of the persons possessed the qualifications of jurors required by law, and were not then exempt from jury service. They caused the names of the 611 persons, so selected, to be placed upon the jury roll for Dale county, Ala., in a well-bound book. The names were arranged therein alphabetically, by precincts, and written opposite each name was the occupation, residence place of business of each person so selected. The jury commissioners caused to be prepared 611 plain white cards, all of the same size, with the name, occupation, place of residence, place of business of each of the 611 persons whose names had been placed on the jury roll, written thereon, there being but one of said persons' name, occupation, place of residence and of business on each card. The jury commissioners divided into two parcels the said cards containing the names of the 611 persons, and put in one parcel 305 of said cards, and in the other 306 of said cards, and they then caused said 305 cards with the contents to be placed in a metal box, provided with a lock and two keys, and they caused this box containing the 305 cards to be placed and kept as the jury box for Dale county. The jury commissioners "turned over said 306 other names, with their contents, to said Andrews, as the clerk of said commission, who then and there placed the same in a pasteboard box, which he closed and sealed and kept with its said contents separate and apart from said metal box," and none of them "have been placed in the said jury box."
The presiding judge of this circuit court of Dale county drew from this jury box of the county, which contained the 305 cards with names of persons so selected as qualified jurors by the jury commission, the names of persons to serve as grand and petit jurors during the first week of August term of the circuit court, and when court convened, the presiding judge in the manner required by law drew the names of 18 persons as grand jurors from this venire, who were in attendance, and who had not been excused and had qualified. This grand jury found and returned into open court the indictment against this petitioner charging him with murder in the first degree. The foregoing appears, in substance, to be the material facts averred in the petition and admitted in the answer.
The petitioner contends and claims the jury box is illegal, this venire for the first week of the court drawn from this jury box was illegal, the grand jury drawn from this venire was illegal, and this indictment returned by the grand jury against him is void, and should be quashed, because this jury box of the county, from which the venire was drawn, contained only 305 names of persons selected and declared qualified as jurors by the jury commissioners; that it should have contained the names of 611 persons, selected and held qualified as jurors by the jury commissioners. The jury...
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Hammond v. State, 3 Div. 444
...is a proper statement of the law, except that the appellee had ignored the phrase, "in the absence of fraud . . . ." In Bell v. Terry, 213 Ala. 160, 104 So. 336 (1925), the Alabama Supreme Court held that the indictment in that case should not be quashed, except on a plea in abatement, sust......
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Fikes v. State
...on the roll or in the jury box, in the absence of fraud (or a denial of constitutional rights). Section 46, Title 30, Code; Bell v. Terry, 213 Ala. 160, 104 So. 336; Wimbush v. State, 237 Ala. 153(11), 186 So. 145. The commissioners have a very delicate task to perform which involves sound ......
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Benton v. State
... ... in filling the jury box do not render the venire void. Ala ... & So. Dig., Indictment and Information, + 33; Bell v ... Terry, 213 Ala. 160, 104 So. 336 ... [18 So.2d 426] ... It ... appearing that the bullets from appellant's pistol ... ...
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Mullins v. State, 8 Div. 147.
...denied 213 Ala. 78, 104 So. 139; section 8636, Code of Alabama 1923; Dailey v. State, 21 Ala. App. 516, 109 So. 892. In Bell v. Terry, 213 Ala. 160, 104 So. 336, it held that the venire of jurors should not be quashed except on motion and proof in the circuit court showing fraud in filling ......