Garner v. State
| Decision Date | 07 April 1921 |
| Docket Number | 7 Div. 127 |
| Citation | 206 Ala. 56,89 So. 69 |
| Parties | GARNER v. STATE. |
| Court | Alabama Supreme Court |
Rehearing Denied May 12, 1921
Appeal from Circuit Court, Shelby County; B.J. Garrison, Judge.
Sallie Garner was convicted of murder and she appeals. Affirmed.
Longshore & Koenig, of Columbiana, for appellant.
J.Q Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
Appellant was convicted of murder in the first degree, and her punishment fixed at life imprisonment. By way of pleas in abatement and motion to quash the venire, both regular and special, the defendant presents the question as to whether or not illegality or irregularity on the part of the jury commissioners as to the jury box for that county can be set up, to the end of establishing the irregularity of the grand jury, and the consequent invalidity of the indictment, as well, also, the general and special venire.
These pleas and the motion to quash set up in substance that the jury commissioners, in refilling the jury box with only 600 names, where it had previously contained 1,400, and thereby excluding therefrom the names of a large number of those who were in every way qualified therefor, had acted without authority of law. A question of similar nature was the subject of review, arising from this county, in the case of State ex rel. Denson v. Miller, 204 Ala. 232, 85 So 698, which was a mandamus proceeding to require the commission to fill the jury box as required by statute, and it was held the petitioner was entitled to relief. That proceeding, however, as noted, is a direct attack, and the question here for consideration is whether or not a collateral attack upon the action of the jury commission can suffice to establish the invalidity of the indictment as well as the venire.
We do not think so, but entertain the view that the provisions of sections 23 and 29 of the Jury Law (Gen. & Loc.Acts Sp.Sess.1909, pp. 315-317) were intended by the Legislature to prevent such collateral matters having this effect. Section 23 specifically provides that no objection can be taken to an indictment by plea in abatement, except upon the ground that the grand jurors who found the indictment were not drawn by the officer designated by law to draw the same and in section 29 no objection can be taken to any venire of jurors, except for fraud in drawing or summoning the jurors. We are therefore of the opinion that the attack must be directed against the jury commissioners, as was done in the Denson Case, supra, and can avail nothing to the appellant upon this appeal. The demurrers to the pleas were properly sustained, and the motion to quash the venire was properly overruled. The Court of Appeals reached the same conclusion in the case of Reeves v. State, 88 So. 197.
But one other question remains for consideration. It appears from the bill of exceptions that after the evidence had been introduced, but before the argument had begun, the presiding judge announced that he did not recall that the jurors had been sworn, and no reply,...
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...See Cooper v. Campbell, 597 F.2d 628, 629 (8th Cir.), cert. denied, 444 U.S. 852, 100 S.Ct. 106, 62 L.Ed.2d 69 (1979); Garner v. Alabama, 206 Ala. 56, 89 So. 69, 70 (1921); Arizona v. Godfrey, 136 Ariz. 471, 666 P.2d 1080, 1082 (App.1983); Hollis v. Colorado, 630 P.2d 68, 70 (Colo.1981);13 ......
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Mullins v. State, 8 Div. 147.
... ... Ala. App. 103, 105 So. 390 ... A ... collateral attack upon the commissioners for illegality or ... irregularity in filling the jury box contrary to sections ... 8603 and 8606, Code of 1923, cannot suffice to establish the ... validity of the indictment or the venire. Garner v ... State, 206 Ala. 56, 89 So. 69; Reeves v. State, ... 17 Ala. App. 684, 88 So. 197 ... For the ... reasons stated, the state's demurrers were properly ... sustained to the plea in abatement, and the motions to quash ... the indictment and venire were properly overruled ... ...