Gore v. State

• Citation: 114 So. 791,22 Ala.App. 136
• Decision Date: 24 May 1927
• Docket Number: 6 Div. 3
• Parties: GORE v. STATE.
• Court: Alabama Court of Appeals

114 So. 791

22 Ala.App. 136

GORE v. STATE.

6 Div. 3

Court of Appeals of Alabama

May 24, 1927

Rehearing Denied June 21, 1927

Appeal from Circuit Court, Jefferson County; H.P. Heflin, Judge.

David Gore, alias Jack Harris, who was indicted for murder in the first degree, was convicted of manslaughter in the second degree, and manslaughter in the second degree, and he appeals. Reversed and remanded.

Certiorari denied by Supreme Court in Gore v. State, 114 So 794.

Black &amp Fort and G. Ernest Jones, both of Birmingham, for appellant.

Charlie C. McCall, Atty. Gen., and W.M Rayburn, Asst. Atty. Gen., for the State.

SAMFORD J.

The defendant moved to quash the indictment in this case, setting forth various grounds, only two grounds of which it is necessary for us to consider, these being: (1) Not sufficient evidence; (2) no legal evidence to authorize the finding of an indictment.

On the hearing of this motion by the court, the defendant sought to introduce in evidence the transcribed notes of the stenographer who took and transcribed the testimony of the witnesses who testified before the grand jury in this case, and, failing in that, offered to prove by the stenographer, from his recollection, what these witnesses testified to. As to the first ground, we have but to say that the court may not inquire into the sufficiency of the evidence upon which an indictment is predicated. Walker v. State, 17 Ala.App. 555, 86 So. 257; Sparrenberger v. State, 53 Ala. 481, 25 Am.Rep. 643; Agee v. State, 117 Ala. 169, 23 So. 486.

The second ground of the motion to quash presents a different question. By that ground it is alleged that, although witnesses were examined by the grand jury, they gave no legal testimony tending to connect the defendant with the commission of any crime charged in the indictment. If this be true and proven to the court, and the grand jury in disregard of their oaths and duty returned an indictment into court, without any evidence to sustain it, the paper purporting to be an indictment is not such in fact, and while the proceedings are in fieri the court has the inherent power to strike from its files any paper which has been wrongfully, without the warrant of law, introduced into them. Sparrenberger v. State, 53 Ala. 481, 25 Am.Rep. 643; Owens v. State, 19 Ala.App. 621, 99 So. 774. Upon a similar question, Brickell, C.J., in Sparrenberger's Case, supra, adopted the language used in U.S. v. Coolidge, Fed.Cas. No. 14858: "The grand jury is the great inquest between the government and the citizen. It is of the highest importance that this institution be preserved in its purity, and that no citizen be tried until he has been regularly accused by the proper tribunal"--and we may add upon legal evidence. The inquiry the motion involves is not triable by a jury, but brings the proceedings of the grand jury before the presiding judge, who has general supervision over all the processes of the court over which he presides, to see that persons charged with crime are proceeded against according to law.

Under ground No. 2, the defendant has the burden of proving that there was no legal evidence upon which the grand jury returning the indictment might base its return. For this purpose it has been held and has been the practice recognized by this court and the Supreme Court to permit the examination of grand jurors and witnesses testifying before the grand jury in the inquiry. Walker v. State, 17 Ala.App. 555, 86 So. 257; Hart v. State, 117 Ala. 183, 23 So. 43; Allen v. State, 162 Ala. 74, 50 So. 279, 19 Ann.Cas. 867; Smith v. State, 13 Ala.App. 399, 69 So. 402.

The remaining question to be determined upon this inquiry is: Can the proof necessary to support the defendant's allegation of "no evidence" be proven by the solicitor's stenographer, who was present in the grand jury room during the investigation and took down in shorthand the testimony of the witnesses examined by the grand jury in this investigation. And if so, may this be done by introducing the transcribed notes of the solicitor's stenographer.

The solicitor's stenographer for Jefferson circuit court is provided for by an act of the Legislature of 1923, approved August 22, 1923 (Acts 1923, p. 200). There is no provision in that act that the stenographer therein provided acts in any official capacity, or that his notes when transcribed shall be official or a part of the court records. He is to all intents and purposes the secretary of the solicitor, to make and keep memorandums and reports of proceedings to aid the solicitor in the prosecution of cases. In this they differ from the official reports of court stenographers provided under section 6734 of the Code of 1923 and similar statutes under consideration in such cases as Todd v. State, 13 Ala.App. 301, 69 So. 325. For obvious reasons we hold that these transcribed notes cannot be called for by a defendant and, upon delivery, be by him introduced in evidence. The defendant was not in possession of this transcribed evidence and was not in position to offer it.

Having been present and heard the testimony before the grand jury this witness should have been allowed to testify whether or not the grand jury examined witnesses in the investigation of this particular case, and if the witnesses testified as to the commission of the crime and defendant's connection with it. For this purpose he could use notes taken at the time to refresh his recollection. But the inquiry may not extend to a test of the sufficiency of the evidence upon which the grand jury acted in returning the...