Harrington v. State
|Supreme Court of Alabama
|83 Ala. 9,3 So. 425
|HARRINGTON v. STATE.
|05 January 1888
Appeal from city court of Mobile; O. J. SEMMES, Judge.
Indictment of Edward M. Harrington for murder. Defendant was convicted of murder in the second degree, and he appeals.
Samuel B. Browne and James Cobb, for appellant.
Thos. N. McClellan, Atty. Gen., for the State.
The defendant made a motion in arrest of judgment on the ground that the indictment was not found by a grand jury legally organized. The specific objections are: It does not affirmatively appear that four of the jury commissioners were present at the drawing of the jurors, as required by the special act for Mobile county; that the grand jurors impaneled were the same persons drawn; and that the jurors were sworn according to law. When there appears of record an order of the court, or action of the presiding judge relating to the formation of the grand jury, which is contrary to the provisions of the statute, or without warrant of law, such objection is the subject of a motion in arrest of judgment, and may be raised for the first time in this court. O'Byrnes v. State, 51 Ala. 25. But section 4889 of the Code of 1876 declares that no objection can be taken to an indictment, by plea in abatement or otherwise, on any ground, going to the formation of the grand jury, except that the jurors were not drawn in the presence of the officers designated by law. It has been uniformly held that the statute operates to prohibit any objection being taken to an indictment, based on irregularities in the organization of the jury which are cured by statute. Therefore, the grounds of objection that the record does not show that the grand jurors were the same persons drawn, and that they were sworn in the manner directed by the Code, if they exist in fact, can be of no avail to the defendant. Harrington v. State, 36 Ala. 236; Billingslea v. State, 68 Ala. 486; Roe v. State, 82 Ala. 68, 2 South. Rep. 459.
Section 4890 of the Code provides: "A plea to an indictment, on the ground that the grand jurors, by whom it was found, were not drawn in the presence of the officers designated by law must be filed at the term at which the indictment is found." Notwithstanding this express provision, it has been held that the court has the discretionary power to allow the plea to be filed at a subsequent term, the statute being considered as directory. In Russell v. State, 33 Ala. 366, where the statute was thus construed, it was further held that the defendant, having had the opportunity to present the objection at a subsequent term of which he neglected to avail himself, had no ground of complaint on error. This construction is in harmony with the policy and spirit of the statute; which, though directory as to the prescribed term at which the plea shall be filed, impliedly requires it to be filed before the completion of the trial. Under the statute the objection must be taken as soon as practicable after opportunity, and cannot be taken after trial on the merits. Nixon v. State, 68 Ala. 535. The operator of the statute is to cure the error, unless presented in proper time. The defendant raised the objection by motion in arrest of judgment, having had ample opportunity to present it before trial. It came too late, if in fact it existed. Moreover, a motion in arrest of judgment must be founded on defects apparent on the record. Diggs v. State, 77 Ala. 68. The alleged defect does not appear. By fair construction the reasonable inference is that all the jury commissioners were present at the drawing.
The prosecuting attorney was permitted to ask the witness Smith, a physician, what was in his opinion the cause of the death of the deceased on certain supposed facts. One of the hypothetic facts is that the deceased exhibited symptoms of drowsiness while being carried to the guard-house. The objection to the question is based on the specific ground that there was no evidence tending to show this fact, which is a waiver of all other grounds. The court admitted the question, stating that there was but little evidence as to the facts, and if the state did not prove the hypothetical facts, the jury would not consider the answer of the witness. It will be conceded that the evidence was irrelevant at the time the interrogatory was propounded; but though then irrelevant, and though the better and safer practice is, when practicable, not to admit evidence unless relevant when offered, its admission will not work a reversal if it is made relevant by evidence subsequently introduced. We think testimony, prima facie sufficient for this purpose, was subsequently introduced, though it may be slight. Whether or not sufficient to prove the supposed facts on which the opinion of the witness is asked is matter for the determination of the jury, on consideration of the whole evidence. If found insufficient, of course no value should be given to the opinion of the witness.
At the request of the prosecution the court instructed the jury in general terms: "If death ensued from the intentional application of unlawful force, though there may have been no specific intention to kill, and though the weapon used is not ordinarily calculated to produce death, the perpetrator is at least guilty of manslaughter in the first degree." Four other charges were given, applying the same general rule to the different aspects of the case as presented by the evidence, but qualifying the application by the particular hypothesis of each instruction. The charge quoted above asserts the general proposition, that if the death of the deceased ensued from the intentional application of unlawful force, without reference to its nature and character, or to the circumstances under which applied, if not in...
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