Foster v. State, 6 Div. 107

• Decision Date: 12 January 1971
• Docket Number: 6 Div. 107
• Citation: 46 Ala.App. 344,241 So.2d 903
• Parties: Tommy Lee FOSTER v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 903

241 So.2d 903

46 Ala.App. 344

Tommy Lee FOSTER v. STATE.

6 Div. 107.

Court of Criminal Appeals of Alabama.

Jan. 12, 1971.

Turner & Turner, Tuscaloosa, for appellant.

MacDonald Gallion, Atty. Gen., and Jasper B. Roberts, Asst. Atty. Gen., for the State.

CATES, Judge.

Robbery: minimum sentence, ten years. Code 1940, T. 14, § 415.

The only point reserved which merits elaboration was in the oral charge where we find, in part:

'Now, an indictment is no evidence of the guilt of the Defendant whatsoever: An indictment is merely the vehicle by which the case in a criminal proceeding is brought into court and started on its procedure of trial, and so forth. Many of you have served on the Grand Jury, I'm sure, but 18 people compose the Grand Jury, and any charge brought against a person and presented, if it is a felony case, it must be presented to the Grand Jury. And the Grand Jury then decides whether or not--Now the Grand Jury does not decide the guilt or innocence of that person, but if they feel that it is a matter that that person is charged with, of sufficient importance and there is a possibility of his guilt to the extent they feel like it ought to be tried by a Petit Jury, they then return what is known as a true bill; it takes twelve affirmative votes to vote out an indictment, to indict a person. In this case, this Defendant was indicted, but now, I tell you again: That is no evidence of his guilt whatsoever. That Grand Jury felt that his charge was such that he should stand trial, and that his guilt or innocence should be proved, and you are the Petit Jury--you are the jury trying the facts of this case. I thought I would give you that so that some of you who might otherwise not quite understand the difference in a Grand Jury and a Petit Jury, would know what the difference is.'

In brief appellant cites Matthews v. State, 18 Ala.App. 222, 90 So. 52, where Bricken, P.J., said:

'* * * The mere fact that the defendant was accused of and arrested for the alleged offense, and the further fact that the grand jury found an indictment against him therefor, were not facts or circumstances to which the jury were allowed to look in considering the guilt or innocence of the defendant, nor was the accusation, arrest, or indictment circumstances in law or in fact showing or tending to show that the defendant was guilty of the offense charged. These things were merely the authorized procedure by which an accused may be put upon trial, and are...