Ex parte Lawler

Decision Date16 December 1913
Citation64 So. 102,185 Ala. 428
PartiesEx parte LAWLER, Probate Judge.
CourtAlabama Supreme Court

Petition for mandamus by W.T. Lawler, individually and as Judge of Probate, to compel James H. Ballentine, judge of the law and equity court of Madison county, to strike from the court files a grand jury report, recommending petitioner's impeachment. Petition denied.

The grounds of petition are that when the grand jury was organized that made the report recommending the impeachment of the probate judge, it consisted of 18 qualified citizens of the county, and that it was organized October 6, 1913 that on October 20, 1913, two members of said grand jury were excused by the court, and two other qualified citizens were drawn and impaneled and sworn as grand jurors to take the place of the two that had been excused, and on October 27 1913, three other members of said original body were excused by the court, and three qualified citizens of the county drawn and impaneled and placed upon the grand jury to take the place of those three which had been excused, and on October 30, 1913, said body as thus constituted, and consisting of 13 men who had been originally impaneled as members of said grand jury, together with the five who were afterwards drawn and impaneled and placed upon said grand jury, made and returned into open court their final report in writing, among other things recommending impeachment proceedings against petitioner as probate judge of Madison county. Then follows a history of the original application to the judge of the Madison law, and equity court, to strike from the files and expunge from the record the report of said body and his orders and decrees denying petitioner's motion. The respondent made motion to quash the petition, and also submitted his answer as appears in the opinion.

Spragins & Speake and Cooper & Cooper, all of Huntsville, for appellant.

James H. Ballentine, of Huntsville, and R.C. Brickell, Atty.Gen and W.L. Martin, Asst. Atty. Gen., for appellee.

DE GRAFFENRIED, J.

Section 7283 of the Code of 1907 is in the following language "If fifteen persons, duly qualified to serve as grand jurors, do not appear, or if the number of those who appear is reduced below fifteen by reason of discharges, or excuses allowed by the court, of by any other cause, the court must cause an order to be entered on the minutes, commanding the sheriff to summon from the qualified citizens of the county twice the number of persons required to complete the grand jury, which order the sheriff must forthwith execute, and in any event the court may in its discretion order a sufficient number of qualified jurors summoned to increase the number of grand jurors to eighteen, and the persons summoned by him are bound to appear presently, and, if necessary, to serve as grand jurors, under the same penalties as if they had been regularly drawn and summoned on the original list of grand jurors for the term; and of the persons so summoned, if a greater number appear than is necessary to complete the grand jury, the names must be written on separate slips of paper, which must be folded or rolled up, so that the name may not be visible, placed in a box, or some substitute therefor, and from them must be drawn, under the direction of the court, a sufficient number of names to complete the grand jury." The above section of the Code, without the italicized portions, appeared in all of our previous Codes, and has many times been construed by this court. The italicized portions were added to the section when it was brought forward into our present Code. Prior to the change which we have noted in italics, this court, by a long line of decisions, held that when a grand jury is once legally organized, the court in which the organization was perfected, had no power to add any other person to said grand jury unless the number was reduced below 15. Berry v. State, 63 Ala. 127; Kilgore's Case, 74 Ala. 1; Blevins v. State, 68 Ala. 92; Nordan v. State, 143 Ala. 13, 39 So. 406; Osborn v. State, 154 Ala. 44, 45 So. 666. While the above section of the Code, by a strict construction might have been held to apply only to the action of the court in organizing the grand jury, nevertheless this court has uniformly held that the section, before it was brought forward into the present Code, read in connection with section 7282 of the Code, conferred the power upon, and required the court to increase the grand jury when the number fell below 15. In other words, the section, taken in connection with section 7282 of the Code, was held to apply to grand juries already organized, as well as to those while in the process of organization. Peters v. State, 98 Ala. 38, 13 So. 334; Ramsey v. State, 113 Ala. 49, 21 So. 209.

It will be noted that under the language of the statute as it existed prior to our present Code, the court was required, when organizing a grand jury, to meet the provisions of section 7282, which provides that "at least fifteen persons must be sworn on the grand jury," to organize a grand jury of that many persons in any event, and this court held that, in no event, could the court, if as many as 15 qualified persons appeared and were ready and willing without excuse to serve as grand jurors, increase the grand jury beyond that number. If as many as 18 or 17 or 16 or 15 qualified persons appeared as grand jurors without excuse, then it was the duty of the court to organize a grand ury composed of said 18, or 17, or 16, or 15, persons so appearing. In other words, under the decisions of this court prior to the adoption of our present Code, a court had no right, under the very language of the above-quoted statute, in perfecting the organization of a grand jury, to add to those qualified persons appearing as grand jurors unless those appearing as duly qualified grand jurors were, for some reason, reduced below the number 15. If they were reduced below the number 15, then the court was required to increase the number to 15, and, under the above decisions, the court, in such contingency, was, in its discretion, authorized to increase the number to 18. With reference to the power of the court to increase the number of grand jurors after the grand jury's organization, this court held, in construing said sections, that so long as a grand jury contained as many as 15 persons, then the court had no power to increase the number of grand jurors; but that if the number fell below 15 then that the court must increase the number so as to constitute a legal grand jury. Peters v. State, supra; Ramsey v. State. The power of the court, therefore, to increase the number of grand jurors, always, prior to the adoption of our present Code, depended upon one event, viz., the reduction of the number of grand jurors below 15. The result of the language of the above sections and of the above decisions was that indictments were frequently held by this court to have been vitiated because a court, upon excusing a grand juror for the term, would sometimes fill his place with another qualified person without observing that, under the statute, the one event upon which the power of the court to fill such vacancy arose had not occurred, viz., that the grand jury had not been reduced below the number 15. Blevins v. State, supra; Cross's Case, supra; Kilgore's Case, supra. To remedy this deficiency in our law the Legislature, in adopting our present Code, added the above italicized words to our statute and said, in plain language, that "in any"--not one--"event the court may, in its discretion, order a sufficient number of qualified jurors summoned to increase the number of grand jurors to 18."

The sections now under consideration were brought forward into our Codes of 1876, 1886, and 1896, with the construction which this court had placed upon them--and which construction we have above explained--and when the Legislatures adopted said Codes of 1876, 1886, and 1896, they, in effect, wrote into the sections, as a part of them, the decisions of this court construing them. When, therefore, the Legislature, in adopting the present Code, placed in section 7283 the words which we have above italicized, it clearly intended to declare that, in the future, at all...

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3 cases
  • American Indemnity Co. v. City of Austin
    • United States
    • Texas Supreme Court
    • December 20, 1922
    ...State v. Towery, 143 Ala. 48, 39 South. 309; Pratt Institute v. New York, 183 N. Y. 151, 75 N. E. 1119, 5 Ann. Cas. 198, 199; Ex parte Lawler, 185 Ala. 428, 64 South. 102, 103; Eddington v. Union Portland Cement Co., 42 Utah, 274, 130 Pac. 243, 244; Ex parte Donnellan, 49 Wash. 460, 95 Pac.......
  • Rogers v. State
    • United States
    • Alabama Court of Appeals
    • August 1, 1916
    ... ... he appeals. Affirmed ... The ... pleas referred to present the same matter as that presented ... by the appeal in Ex parte Rogers, 190 Ala. 627, 67 So. 253 ... The other facts sufficiently appear ... Craig & ... Craig, of Selma, for appellant ... State, 8 Ala.App. 374, 62 So. 318, relied on by ... appellant, were declared to be unsound on this point in Ex ... parte Lawler, 185 Ala. 428, 64 So. 102. The result is that ... the rulings of the court on the several motions of the ... defendant, if error, were without ... ...
  • State v. Gowan, 44625
    • United States
    • Minnesota Supreme Court
    • December 28, 1973
    ...cases: Hafley v. State, 8 Ala.App. 378, 62 So. 319 (1913); Yeager v. State, 8 Ala.App. 374, 62 So. 318 (1913); and Ex parte Lawler, 185 Ala. 428, 64 So. 102 (1913). These cases involved the interpretation of Alabama statutes and are distinguishable from this In summary, we hold that a distr......

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