Doss v. State

• Decision Date: 16 April 1929
• Docket Number: 6 Div. 302.
• Citation: 123 So. 237,23 Ala.App. 168
• Parties: DOSS v. STATE.
• Court: Alabama Court of Appeals

123 So. 237

23 Ala.App. 168

DOSS v. STATE.

6 Div. 302.

Court of Appeals of Alabama

April 16, 1929

Rehearing Denied May 7, 1929.

Appeal from Circuit Court, Blount County; O. A. Steele, Judge.

Eugene Doss was convicted of kidnapping, and he appeals. Reversed and remanded.

Certiorari denied by Supreme Court in Doss v. State, 123 So 231.

Rice J., dissenting in part.

Member of masked and hooded band who participated in seizure of drunken man near church and in taking him to woods and flogging him was technically guilty of kidnapping. (Code 1923, § 3189). Per Rice, J.

Horace C. Wilkinson, of Birmingham, for appellant.

Charlie C. McCall, Atty. Gen., and Thomas E Knight, Jr., Asst. Atty. Gen., for the State.

BRICKEN P.J.

This appellant was indicted, tried, and convicted in the court below for the offense prescribed and denounced under section 3189 of the Code of 1923. This section bears the title "Kidnapping." It read as follows:

"Any person who forcibly or unlawfully confines, inveigles, or entices away another, with the intent to cause him to be secretly confined, or imprisoned against his will, or to be sent out of the state against his will, must, on conviction, be imprisoned in the penitentiary for not less than two nor more than ten years."

Before entering upon the trial and at the proper time, the defendant (appellant) filed a sworn plea in abatement to the indictment, alleging, in substance, that the grand jury that returned the indictment was not drawn and impaneled as required by law, but was "stacked"; that the cards containing the names of the jurors in attendance on that week were not placed in a hat or box by the circuit judge and indiscriminately drawn therefrom, but, to the contrary, the names of the jurors attending court that week, from which the grand jury was drawn that returned the indictment, were all stacked up in one stack and the first 18 names on the stack were "selected," by the judge presiding, as the grand jury that returned the indictment in this case.

The state demurred to this plea on three grounds: "(1) Because the plea is no answer to the indictment; (2) because the plea presents no valid objection to the indictment; (3) because the plea does not aver that the grand jury was not drawn by officers required by law to draw same." The demurrer was sustained, and that action of the court is here urged as error.

There are several statutes in this state bearing on this question: Section 5202, Code 1923, under the head of "Pleading and Practice." Section 8630, Code 1923, under the heading "Jurors and Juries." Also two other statutes under this heading which have a bearing on the question under review: Sections 8636 and 8637, Code 1923.

Section 8616 of the Code regulates the drawing of the names from the jury box for venire sufficient for a grand jury for the session of court and petit juries for the first week of the session. This section specifically provides that in such drawing "there shall be no selection of names," and that a name once drawn from the box shall not be returned thereto.

After the venire is drawn from the jury box and the jurors report to court in response to its summons, the impaneling and organization of the grand and petit juries are regulated by section 8622 of the Code of 1923. The pertinent portion thereof reads as follows: " Hearing of Excuses; Impaneling and Organizing Grand and Petit Juries.-The court shall require all persons named in the venire to be called, and shall then hear all excuses and claims of exemptions and disqualifications, and after passing upon all of the excuses or claims, shall cause the names of all the jurors in attendance upon the court on that day, and who have not been excused by the court, to be written on separate slips of paper, or cards and placed in a hat or box, and thereupon the judge of the court must, in open court, draw from the hat or box, at terms requiring grand juries, the names of eighteen jurors who shall be impaneled and sworn as the grand jury for the term of the court."

Correctly stated, the points of decision here presented for review in this connection, are: (1) Can a circuit judge in this state lawfully "pick" or select the members of the grand jury from the venire in attendance upon court, or must he draw the names of the persons who are to compose a grand jury indiscriminately from a hat or box? (2) If it is illegal for the circuit judge to "pick" or select the members of the grand jury, and he does so notwithstanding (as the sworn plea avers, and the demurrer for the purpose in hand admits), can that action be inquired into by a plea in abatement?

1. Taking into consideration the express provision in section 8616, Code 1923, that "there shall be no selection of names" in the drawing of the venire from which the grand jury is to be impaneled and the prohibition against returning a name drawn, as also explicit provisions in section 8622, supra, in reference to placing the names on separate slips of paper or cards, and the requirement that the judge shall place or cause those names to be placed in a hat or box, "thereupon the judge of the court must, in open court, draw from the hat or box *** the names of 18 jurors who shall be impaneled and sworn as the grand jury for the term of the court," we are of the opinion, and so hold, that it is illegal for a cuicuit judge to "pick" or select a grand jury by a manipulation of the cards or slips containing the names of the entire venire to meet "the caprice or prejudice of the judge," or for any other reason. The remarks of that illustrious jurist, Mr. Justice, afterwards Chief Justice, Brickell, in O'Byrnes v. State, 51 Ala. 25, 29, are in point here:

"The object of the statutes cannot be mistaken. If the power ever existed in any court, which the court in this case exerted, it was intended to withdraw it. Such a power is so irresponsible,-so capable of being used to impair the sanctity and purity of the grand jury,-that the legislature have, in effect, denied its existence. If the court could legally set aside the venire drawn and summoned by the officers having authority to draw and summon it, the power is unlimited. The jurors summoned under its order could be set aside in the exercise of the same power, and so

from time to time, until a jury was organized to meet the caprice or prejudice of the judge. The practical results of the operation of the action of the court are opposed to the spirit of all our laws."

So say we here. If the court could legally disregard the hat or box and select any 18 names he saw fit to select, then the power of the court would be practically unlimited and the specific provisions of the statute meaningless. We conclude the court was without power to pick or select a grand jury in the way and manner stated in the plea.

2. The question recurs: Can action of that kind be inquired into by plea in abatement?

In Rodgers v. State, 144 Ala. 32, 40 So. 572, it was decided that section 5269 of the 1896 Code (now section 5202 of 1923 Code) was "an absolute limitation of the subject named in the statute [i. e. that the jurors were not drawn in the presence of the officers designated by law] as the only cause which can be assigned in such cases."

In Zininam v. State, 186 Ala. 9, 65 So. 56, in speaking of section 29 of the 1909 Jury Law, which is now codified as section 8636 of the Code 1923, the Supreme Court, through Mr. Justice Sayre, said:

"'It is hereby expressly declared to be the intent of the Legislature in the enactment of this law, to make the provisions hereof in the relation to the selection, drawing, summoning or impaneling of jurors directory merely and not mandatory.' Nevertheless it is clear on inescapable grounds that some of the provisions of the act in respect to the selection, drawing, summoning, and impaneling juries are mandatory. The power of the Legislature to prescribe the interpretation of its own language cannot be doubted. But it has been often noted that interpretation clauses in statutes embarrass rather than assist the courts in their decisions, *** and that has been found to be the case with the act in question. When the Legislature in this act, along with its general prescription for interpretation, provided specific regulations, which must have been deemed essential to the proper conduct of trials by jury, and which, if they are to have any operation at all, must be made effectual according to the specific language of the act, it so provided that either such specific regulations must be accepted by the courts as mandatory, or the statute as to them must be held to be insensible and of no effect. To illustrate: The act provides that the venire for the trial of a capital felony shall consist of not less than 50 nor more than 100 persons. It could not be held that the judge may fix the venire at any number he pleases less than 50 or more than 100. Or, again: The act provides that from the list of qualified jurors appearing for service the solicitor for the state and the defendant shall strike 1 and 2 names, respectively, and alternately until the list is reduced to a jury of 12. It would be without the power of the trial judge to substitute a different procedure. So this court, following the only course open to it, has held that part of the statute mandatory which requires that a list of the names of all jurors summoned for the trial shall be served upon the defendant. Edgar v. State, 183 Ala. 36, 62 So. 800."

Section 7572 of the Code 1907 appears to have been codified twice in the Code of 1923, once as section 5202 and again as section 8630. Section 29 of the 1909 Jury Law is brought forward as section 8636 of the Code 1923.

Section 5269, Code 1896, now section 5202 of the Code of...