Ex parte Rogers

• Decision Date: 30 November 1914
• Docket Number: 580
• Citation: 190 Ala. 627,67 So. 253
• Parties: Ex parte ROGERS.
• Court: Alabama Supreme Court

67 So. 253

190 Ala. 627

Ex parte ROGERS.

No. 580

Supreme Court of Alabama

November 30, 1914

Mandamus by John Rogers against B.M. Miller, Judge of the Fourth Judicial Circuit, to compel the latter to change or correct the records of the organization of a grand jury. Denied.

Craig &amp Craig, of Selma, for appellant.

R.C Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for appellee.

PER CURIAM.

This is an application for mandamus to the judge of the Fourth judicial circuit, to compel him to change or correct the record as to the organization of the grand jury of Dallas county; the petitioner having been indicted by said grand jury.

As to the names of those jurors who were excused by the court for answering in the negative, as to whether or not they would indict druggists for selling coca-cola, cigars, etc., on Sunday, the action in doing so went to the formation of the grand jury; and no objection to the action of the court is available to this petitioner, as section 7572 of the Code of 1907 cuts off the right to object to an indictment as to either the drawing or the formation of the grand jury, except where the jurors were not drawn in the presence of the officers designated by law; and said section 7572 is also contained in section 23 of the jury Law (Acts Sp.Sess. 1909 p. 315). Therefore the correction sought, if made, could be of no avail to this petitioner, for, if made in accordance with his contention, it could not affect the validity of the indictment against him.

As to the action of the court in excusing young Hooper, who was placed on the grand jury through mistake, and then calling his father, who was the one intended, and then excusing him and then placing Perrin, the next man on the list, on the grand jury, we may concede that this did not go to the formation of the grand jury as it originally stood, and that the record should state the true facts, and should yet be corrected by the trial court if in session and if not correct; yet, accepting the petitioner's version as to what was done, we are of the opinion that the action of the court, as set up in the motion, did not render the grand jury illegal, so as to affect the validity of indictments returned by it after Perrin was placed on same.

It would therefore be a useless performance to mandamus the trial court and require the correction of a record when, as corrected, it could not affect the validity of the indictment...