Benton v. State

• Decision Date: 25 May 1944
• Docket Number: 4 Div. 332.
• Parties: BENTON v. STATE.
• Court: Alabama Supreme Court

18 So.2d 428

245 Ala. 625

BENTON v. STATE.

4 Div. 332.

Supreme Court of Alabama

May 25, 1944

Rehearing Denied June 22, 1944.

Certiorari to Court of Appeals.

Powell & Fuller and Whaley & Whaley, of Andalusia, and Lee & Lee, of Dothan, for the petition.

Wm. N. McQueen, Acting Atty. Gen., and John O Harris, Asst. Atty. Gen., opposed.

BROWN Justice.

The pleas in abatement filed by the defendant, petitioner here challenge the regularity of the proceedings before the grand jury that returned the indictment,-for that: to state the substance of the averments, the solicitor of the 22nd Judicial Circuit, who participated in the proceedings was related by consanguinity to Charles Wesley Mizell, the person alleged to have been killed, said solicitor being a nephew of said Mizell; that said solicitor and his deputy for the County of Geneva, Smith, participated in the proceeding before the grand jury by examining the witnesses who were sworn in their presence, and said deputy advised the grand jury as to the law, and the circuit solicitor signed the indictment. That the circuit solicitor, and his said deputy "were interested in the prosecution of the defendant; and that said Smith, before the grand jury convened, went into the county jail, at Andalusia, Alabama, where this defendant was then incarcerated upon the alleged charge, and then and there attempted to force, or require this defendant to make a statement relative to the alleged altercation or circumstances which resulted in the death of the said Charles Wesley Mizell."

That said acts of the circuit solicitor and his deputy were a denial to the defendant of the equal protection of the law guaranteed by the Constitution of Alabama, and the Fourteenth Amendment to the Constitution of the United States.

The circuit court sustained the state's demurrer to said pleas, and the Court of Appeals has affirmed, holding that the facts pleaded did not show the grand jurors were not drawn by the officer designated by law to draw them, nor fraud in drawing or summoning said grand jurors. Code 1940, Tit. 15, § 278; Tit. 30, § 46.

There is nothing in the law that disqualifies a circuit solicitor or requires such solicitor to recuse himself from acting in a criminal prosecution because he is related by consanguinity or affinity to the person injured or slain. 42 Amer.Juris. p. 255, §§ 20, 21. On the other hand, it is the statutory duty of "Every circuit solicitor, deputy circuit solicitor, assistant deputy circuit solicitor, county or other solicitor by whatever name called within the circuit, county or other territory for which he is elected or appointed: 1. To attend on the grand juries, advise them in relation to matters of law, and examine and swear witnesses before them. 2. To draw up all indictments and to prosecute all indictable offenses." Code 1940, Tit. 13, §§ 229, 230.

And it is the duty of deputy solicitors, among other things, to "aid or act for the circuit solicitor before the grand jury and in all matters in the circuit court when requested to do so by the circuit solicitor." Code 1940, Tit. 13, § 256.

And the Attorney General is empowered by statute to "direct any solicitor to aid and assist in the investigation or prosecution of any cause in which the state is interested, in any other circuit or county than that of the solicitor so directed." Code 1940, Tit. 55, § 236.

The record discloses that Angus A. Smith, Deputy Solicitor of Geneva County, was given written directions by the Attorney General to represent the State before the grand jury of Covington County, which convened December 8th, 1941, the date on which the indictment against the defendant was presented and returned into the Circuit Court.

The courts will take judicial notice of the order and directions issued in writing by the Attorney General, a commissioned officer of the State, to a public prosecuting officer under the statute cited supra. Prudential Insurance Co. v. Calvin, 227 Ala. 146, 148 So. 837.

When the averments of the defendant's pleas in abatement are viewed in the light of the law, the Circuit Solicitor and his assistant were acting within the line and scope of their respective duties, and if it should be conceded that Smith's alleged acts in interviewing the defendant were unethical, it does not appear that any prejudice to the rights of the defendant were in any way affected or that any prejudice to him resulted therefrom.

Our judgment is that the demurrers to said pleas were properly sustained, and that the motion to quash the indictment on similar grounds was without merit and was properly denied.

The record proper shows that the court convened on November 14th, 1942, at which time defendant interposed his pleas in abatement, to which the State's demurrer was sustained; that the defendant was on said date duly arraigned, and his case set for trial on Monday the 30th of November, 1942, and a special venire ordered for his trial in compliance with the statute. Code 1940, Tit. 30, § 63. On the day set for the trial, the defendant filed a motion in writing to quash the trial venire, on numerous grounds, averring facts dehors the record, which required proof, and permitted evidence in rebuttal thereof. The court on motion of the prosecuting attorneys designated by the Attorney General to prosecute the case, made in writing, struck the motion to quash.

There is nothing in the opinion of the Court of Appeals nor on the record proper showing at what stage of the proceedings the motion to quash was filed, except it was filed in open court on the date set for trial. For all that appears, it was filed after the jury was selected, and in the absence of affirmative statement in the record or finding by the Court of Appeals to the contrary, it will be so presumed. So construing the recitals in the record, the motion to quash was too late, and the court did not err in striking it. Williams v. State, 81 Ala. 1, 1 So. 179, 60 Am.Rep. 133; Ryan v. State, 100 Ala. 105, 14 So. 766.

The defendant on his trial offered as evidence the proceedings had under the provisions of § 425, Title 15, Code 1940 including the petition of the sheriff, the "order of the...