Edson v. State

• Citation: 32 So. 308,134 Ala. 50
• Parties: EDSON v. STATE.
• Decision Date: 12 June 1902
• Court: Supreme Court of Alabama

32 So. 308

134 Ala. 50

EDSON v. STATE.

Supreme Court of Alabama

June 12, 1902

Appeal from city court of Montgomery; William H. Thomas, Judge.

George Edson was convicted of murder in the first degree, and appeals. Reversed.

The indictment preferred in this case was signed, "Terry Richardson, Special Solicitor for the County of Montgomery." The defendant moved the court to quash the indictment upon the following grounds: "(1) Because said indictment was found upon illegal and incompetent evidence. (2) Because the witnesses before the grand jury which found and returned said indictment were not sworn according to law. (3) Because the witnesses before the grand jury were sworn by one Terry Richardson, who was not the solicitor authorized by law to administer the oath to said witnesses. (4) That said Terry Richardson was not duly and legally authorized and appointed to act as such solicitor. (5) That the records of this court fail to show that at the time of the appointment of said Richardson there was any necessity therefor, and this the defendant hereby offers to prove by the records of this court, and the defendant prays judgment. (6) The defendant further moves to quash said indictment because the said Terry Richardson was appointed to serve as special solicitor during the absence of the Honorable Tennent Lomax. Defendant avers that from the time of the organization of said grand jury unto the returning of said indictment the said Tennent Lomax was not absent, but was present in the city of Montgomery wherein this honorable court sits. And this the defendant is ready to prove, and prays judgment hereon." The minute entry reciting the appointment of said Richardson as special solicitor was in words and figures as follows: Minutes. City Court of Montgomery. State Cases. July Term, 1901. Hon Tennent Lomax, the solicitor, being absent, Terry Richardson Esq., a competent attorney, was appointed by the court to act as special solicitor in the solicitor's place, and during his absence, and was duly sworn according to law as such solicitor, and thereupon entered upon the discharge of his duties as special solicitor." The bill of exceptions contains the following recital in reference to this motion "The defendant offered no evidence to sustain any or either of the grounds of said motions, or either of them, and made no proof of the averments thereof. The court overruled the motion of the defendant to quash said indictment." The only other ruling presented to the court on the present appeal is sufficiently shown in the opinion.

Bibb Graves and W. T. Seibels, for appellant.

Chas. G. Brown, Atty. Gen., for the State.

TYSON J.

A cursory comparison of the act approved February 21, 1887 (Acts 1886-87, p. 190), with the act approved March 2, 1901 (Acts 1900-1901, p. 1994), will show that they cannot and were not intended to be operative at the same time. Both of them relate to and deal with the same subject-matter, and some of their provisions are directly in conflict. Manifestly the purpose of the latter was to take from the board of...