Ex parte State ex rel. Attorney General

• Decision Date: 16 December 1927
• Docket Number: 6 Div. 980
• Citation: 217 Ala. 68,114 So. 794
• Parties: Ex parte STATE ex rel. ATTORNEY GENERAL. v. STATE. GORE
• Court: Alabama Supreme Court

114 So. 794

217 Ala. 68

Ex parte STATE ex rel. ATTORNEY GENERAL.

GORE v. STATE.

6 Div. 980

Supreme Court of Alabama

December 16, 1927

Certiorari to Court of Appeals.

David Gore was convicted of manslaughter in the first degree, and he appealed to the Court of Appeals. The judgment of conviction being there reversed, the State petitions for certiorari to review and revise the judgment and decision of that court in said case. 114 So. 791. Writ denied.

Sayre and Thomas, JJ., dissenting in part.

Charlie C. McCall, Atty. Gen., and Jim Davis, Sol., of Birmingham for petitioner.

Wm. E Fort, of Birmingham, opposed.

PER CURIAM.

The reversal of the judgment of conviction in this case by the Court of Appeals appears to be rested upon two rulings of the trial court. The first, upon motion to quash the indictment upon the refusal of the trial court to require or allow the stenographer, who was present and noted the evidence in the grand jury room, to refer to his notes in testifying as to what the witnesses testified before the grand jury. Upon this question, this court in Sparrenberger v. State, 53 Ala. 481, 25 Am.Rep. 643, said:

"When it appears witnesses were examined by the grand jury, or the jury had before them legal documentary evidence no inquiry into the sufficiency of the evidence is indulged."

In Agee v. State, 117 Ala. 169, 23 So. 486, the court gave application to this rule, and sustained the trial court in refusing to allow the defendant to prove the testimony of the witness before the grand jury. The rule was again applied in Washington v. State, 63 Ala. 189, when it was attempted to show the testimony before the grand jury in order to establish that there was no legal evidence, but only hearsay, before that body, connecting the defendant with the crime charged. The refusal of the trial court to receive this testimony was approved, the court saying:

"In refusing to entertain the motion to strike the indictment from the file and quash it, the city court ruled in precise accordance with what was said by this court in Sparrenberger's Case, 53 Ala. 481 . We there said, 'When it appears witnesses were examined by the grand jury, or the jury had before them legal documentary evidence, no inquiry into the sufficiency of the evidence is indulged.' In this case, a competent witness was sworn and examined before the grand jury. The precise point urged in argument is that the grand jury found the bill on insufficient testimony, in this: That while there was proof that a burglary had been committed as charged, no legal evidence was given before that body, showing that the accused was the guilty offender. To allow such inquiry and testimony, would be not only to disregard what was said in Sparrenberger's Case, copied above, but would greatly retard and embarrass the administration of the law."

The Sparrenberger's Case was again approved in Bryant v State, 79 Ala. 282, and the rule therein announced has not been departed from in this court....