Fryer v. State
| Decision Date | 10 May 1906 |
| Citation | 41 So. 172,146 Ala. 4 |
| Parties | FRYER v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Monroe County; John T. Lackland, Judge.
"To be officially reported."
Jimmie Fryer was convicted of homicide, and appeals. Reversed and remanded.
The defendant was charged with unlawfully and with malice aforethought killing Julius Wheeler by shooting him with a gun or by cutting him with a knife, and it appears from the face of the indictment that it was preferred at an adjourned term of the circuit court of Monroe county. Motion was made to quash the indictment on the ground that it was preferred by an illegally organized grand jury and by a grand jury organized and held at a time not allowed by law. Motion to quash was overruled, and on trial the defendant was convicted, and sentenced to the penitentiary for fifteen years. From this conviction, this appeal is prosecuted.
J. N Miller and Bayles, Hyart & Burns, for appellant.
Massey Wilson, Atty. Gen., for the State.
The indictment upon which this defendant was convicted was preferred by a grand jury organized at an adjourned term of the court, after discharge of the former grand jury which was organized at the previous session of the same term. The only authority for organizing a second grand jury at the same term of the court (and an adjourned term is but a prolongation of the regular term) is conferred by section 5000 of the Code of 1896, which is as follows: "When any indictable offense is committed during the session of the court and after the grand jury has been discharged, the court may in its discretion, cause an order to be entered on the minutes commanding the sheriff forthwith to summon eighteen persons possessing the requisite qualifications of grand jurors," etc. The order making provision for the grand jury, entered on the day of the convening of the adjourned term, to wit, July 17, 1905, is in this language: "It being made known to the court that since its adjournment, and since the discharge of the regular grand jury summoned for the term of the court, numerous indictable offenses and homicides had been committed within the county, and parties charged with said offenses are now confined in the jail of the county, and that in the opinion of the presiding judge the public good requires that a grand jury be organized for the purpose of investigating the alleged indictable offenses and homicides, it was [is] ordered that the sheriff of the county forthwith summon eighteen persons from the qualified citizens of said county, possessing the requisite qualifications of grand jurors, to appear on Wednesday, July 19, 1905, and serve as grand jurors for the said adjourned term."
It is entirely clear from this...
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