Cook v. State, 4 Div. 826.

• Decision Date: 09 January 1945
• Docket Number: 4 Div. 826.
• Citation: 32 Ala.App. 54,21 So.2d 446
• Parties: COOK v. STATE.
• Court: Alabama Court of Appeals

21 So.2d 446

32 Ala.App. 54

COOK v. STATE.

4 Div. 826.

Alabama Court of Appeals

January 9, 1945

Rehearing Stricken March 13, 1945.

A L. Patterson, of Phenix City, for appellant.

Wm N. McQueen, Acting Atty. Gen., and Frank N. Savage, Asst Atty. Gen., for the State.

BRICKEN Presiding Judge.

The indictment in this case charged the defendant with the offense of murder in the first degree. Upon the trial he was convicted of manslaughter in the first degree and his punishment was fixed at imprisonment in the penitentiary for a period of four years. From the judgment of conviction, and the action of the court in overruling his motion for a new trial, this appeal was taken.

There appears to be no controversy or dispute as to the facts of this case.

This record, and briefs of counsel, show that Russell County was divided into two judicial divisions, the northern and southern, respectively, by a local act of the Legislature of Alabama, approved August 11, 1927. Local Acts Ala.1927, pp. 175, 182.

The territory comprising each of said judicial divisions was specifically defined by the terms of said Act. Under the general law, existing and of force and effect at the time of the division of said County (Code of Alabama 1923, Sec. 8633), the jury commission of said county was required to make and keep separate rolls and a separate jury box for each of said judicial divisions of said county. It was provided that the jury roll and jury box for the Northern Division should contain only the names of the qualified jurors who lived and resided in the territorial limits of the Northern Division, while the jury roll and jury box of the Southern Division should contain only the names of the qualified jurors of said county who lived and resided in the Southern Division of said county.

Under Section 4 of said Local Act it was provided:

'That grand and petit juries shall be drawn from and serve in their respective divisions to be held in the two said named Courts of Russell County for the Circuit Court of Russell County as is provided by law, the time and place of their service to be designated by the officers drawing and summoning them.'

In the case of Kuykendall v. State, 16 Ala.App. 197, 76 So. 487, this court had occasion to construe the jury provision of the act establishing the Albertville, subdivision of the circuit court of Marshall County. In that case a motion to quash a venire of jurors was made upon the grounds that the jury box from which the regular and special venires was drawn was made up from the names of jurors residing in that part of Marshall County outside of the territorial jurisdiction of the Albertville court. The trial court overruled and denied the motion to quash and upon appeal this court held that the trial court erred to a reversal in overruling and denying said motion to quash, and we held that to constitute a legal jury box for the Albertville subdivision of the circuit court it should contain only the names of the qualified jurors who resided within the territory of Marshall County comprising the Albertville subdivision of the circuit court of that county.

Under the local act approved August 11, 1927, the county site of Russell County remained at Seale, and, for the convenience of the public, a branch court house, with branch public offices, was established at Phenix City. Between August 11, 1927, and May 20, 1943, a county election was held in Russell County for the purpose of removing the County Site from Seale to Phenix City, and, after the holding of said election, Seale was the location of the branch court house, branch offices and branch records, for the Southern Division, while the County Site with the main county offices and county records was at Phenix City and here the sessions of the regular, as distinguished from the branch, Circuit Court of Russell County was held. Pitts v. Culpepper, 229 Ala. 449, 157 So. 841.

Under the Local Act, approved August 11, 1927, and under the general law regulating the jury commission of Russell County, jurors, both grand and petit, for each subdivision were to be obtained from the jury box established for each judicial subdivision of Russell County, filled by the jury commission with the names of the qualified jurors living in each respective judicial subdivision of the County, and such continued to be the arrangement in said county, provided by law, down to May 20, 1943, when the Local Act approved August 11, 1927, was repealed by the Local Act of the Legislature of Alabama, approved May 20, 1943, Local Acts of Alabama, 1943, page 11.

The effect of the Local Act, approved May 20, 1943, was to abolish the two judicial subdivisions of Russell County and also the branch court house and branch public offices the jury box for the Northern nullify both the jury box for the Northern Judicial subdivision and the jury box for the Southern Judicial subdivision of said County, so that said County had no valid, regular and lawful jury box from May 20, 1943, down to and including September 6, 1943 (Labor Day), when the Judge of the Third Judicial Circuit of Alabama, to which Circuit the County of Russell belongs, went to Phenix City and drew a so called venire of jurors from the obsolete, void, defunct and abolished jury box for the old Northern Judicial subdivision of said County to serve at the October Session, 1943, of the Circuit Court of said County. It was to the legal and valid existence of the grand jury drawn, organized and impaneled from the so called venire of jurors drawn from said obsolete, defunct, void and abolished jury box for the old Northern Judicial subdivision of Russell County that defendant's plea in abatement was addressed.

We are of the opinion and so hold that this plea in abatement properly presented to the lower court defendant's claim and contention that said grand jury was an illegal grand jury and that it could not find and return into court a valid and lawful indictment against the defendant for the offense which said indictment attempts to charge, or as for that matter for any other indictable offense. While the State admits, in briefs, that the question of the legal existence of the grand jury that preferred the indictment, was properly presented in the court below, yet contends that the trial court did not err in overruling the defendant's oral motion to quash the indictment, based upon said plea in abatement.

As we understand the brief filed by the Attorney General it is the contention of the State that the drawing of the venire of jurors out of the jury box which had been procured and filled by the jury commission of Russell County for the old Northern Judicial subdivision of said county, did not render the grand jury selected and impaneled from the venire of jurors illegal and void, and would not invalidate the indictment upon which the defendant was tried, and would not make said indictment subject to be quashed, because as the State contends: 'while the jury box for Russell County may not have been refilled since the 1943 Statute was passed, repealing the former law, and while for the purpose of this case, it may not have been filled in compliance with the Statute, yet in view of Section 278 of Title 15, of the 1940 Code, the indictment in this case is valid.' The State bases its contention upon the case of Bell v. Terry et al., 213 Ala. 160, 104 So. 336.

In the case of Bell v. Terry et al., supra, a petition for mandamus was filed in the Circuit Court of Dale County against the jury commission of that county seeking to compel said jury commission to empty and refill the jury box of Dale County. It was prayed in said petition that the court declare the jury box, as filled by said jury commission, to be null and void, and that they be required to empty and refill said box, and to have the act of the Circuit Judge in drawing the venire of jurors from that jury box declared to be illegal and void, and to have the indictment against the petitioner for murder, found and returned by the 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 commission filed an answer admitting the facts averred in the petition and alleging in their answer that said facts were insufficient to entitled petitioner to the relief sought by him and prayed the court on the hearing to dismiss the petition. The court on the hearing, on the facts as alleged and admitted, denied the petition and dismissed it, taxing the petitioner with the court costs. This judgment of the trial court was appealed from by the petitioner to the Supreme Court. We have deemed a recital of the above facts necessary to a correct understanding of the real question involved and of the judgment of the Supreme Court therein in Bell v. Terry et al., supra. In that case the Supreme Court held, and properly so, that the filling of the jury box by the jury commission of Dale...