Franklin v. State
| Decision Date | 03 December 1936 |
| Docket Number | 6 Div. 961 |
| Citation | 233 Ala. 203,171 So. 245 |
| Parties | FRANKLIN v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.
Joseph Victor (alias Jim) Franklin was convicted of murder in the first degree, and he appeals.
Affirmed.
A.K Callahan and E.W. Skidmore, both of Tuscaloosa, for appellant.
A.A Carmichael, Atty. Gen., for the State.
The appellant, James Victor Franklin, was indicted by a grand jury of Tuscaloosa county for the offense of murder in the first degree. Upon his trial he was convicted of murder in the highest degree, and his punishment was fixed by the jury at death by electrocution.
There is no bill of exceptions in the record.
It appears from the record before us, that, before pleading to the indictment, the appellant moved to quash the indictment. This motion was made in writing and was filed in court on April 2, 1936. It is averred in the motion that there "was no sufficient evidence before the grand jury which returned said indictment," and "that there was no legal evidence adduced before the grand jury which returned the indictment"; and that "said indictment was returned by said grand jury on the uncorroborated evidence of the admitted accomplice." These grounds for quashing the indictment are stated in different forms in the motion, but they all amount to the same thing.
The court overruled appellant's said motion to quash the indictment. To this ruling, the judgment recites, the defendant "then and there in open court duly and legally" excepted.
What evidence, if any, the defendant offered in support of his said motion we have no way of knowing, as there is no bill of exceptions in the record.
The defendant pursued his proper course in moving to quash the indictment, if it was in fact returned by the grand jury without legal evidence before it. Sparrenberger v State, 53 Ala. 481, 25 Am.Rep. 643, Allen v. State, 162 Ala. 74, 50 So. 279, 19 Ann.Cas. 867. However, the burden was upon the defendant to show that the indictment was in fact returned without legal evidence, and inasmuch as there is no evidence in the record to support defendant's motion, we cannot review the ruling of the trial court on said motion. Sparrenberger v. State, supra.
There was manifestly no merit in the demurrer filed by the defendant to the indictment in this case. It was in due form as prescribed by the Code. Code, §...
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McConico v. State
...testimony must be raised by a proper motion to quash the indictment. Perkins v. State, 66 Ala. 456 (1880); Franklin v. State, 233 Ala. 203, 171 So. 245 (1937). Further, such motions should be timely filed at the trial level and can not be raised for the first time on appeal. Wright v. State......
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...Code 1940, and therefore are sufficient as against the demurrer. Aikin v. State, 35 Ala. 399; Noles v. State, 24 Ala. 672; Franklin v. State, 233 Ala. 203, 171 So. 245; Rice v. State, 250 Ala. 638, 35 So.2d The first and third counts are also in substantial compliance with Form 79, supra, e......
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Clark v. State
...two of the indictment follows substantially the code form. The court did not err in overruling the demurrers thereto. Franklin v. State, 233 Ala. 203, 171 So. 245. The plea of misnomer alleges that the true name of the defendant is Tishie Clark and not Tishue Clark. The two names in questio......