Johnson v. State

Decision Date28 June 1902
Citation134 Ala. 54,32 So. 724
PartiesJOHNSON v. STATE.
CourtAlabama Supreme Court

Appeal from criminal court, Jefferson county; D. A. Greene, Judge.

Ed Johnson was convicted of robbery, and appeals. Affirmed.

When the case was called for trial, and before the jury was impaneled, the defendant moved the court to quash the indictment upon the following grounds, as set forth in the bill of exceptions: "That this defendant has been heretofore indicted for this same offense, and that on the trial of said indictment, on, to wit, May 21, 1901, it appeared that there was a variance between the proof and the allegations, and that said indictment was quashed by the court, and the defendant held for a new indictment, and that the indictment to which the defendant is now called to plead is the indictment which was found and returned in lieu of said indictment, quashed, as aforesaid, and defendant says that this indictment was not authorized by law, in this There is no order of court, as is authorized by law authorizing the grand jury to present the indictment now pending in this court against the defendant, and because the same is illegal, and the grand jury had no authority to further investigate the case, or to present the indictment which the defendant is now called on to answer." To support this motion the defendant introduced the former indictment preferred against him, and the minutes of the court for May 21, 1901; the trial of the defendant being on June 12, 1901. The minutes of the court of May 21, 1901 after stating the title of the case, was in words and figures as follows: "This the 21st day of May, 1901, came H. P Heflin, solicitor, who prosecutes for the state of Alabama, and also came the defendant, in his own proper person and by his attorney, and the said defendant, being duly arraigned upon said indictment, for his plea thereto says that he is not guilty, and, issue being joined thereupon, the evidence showing that the party charged to have been robbed is named Frank Gress, and the indict ment alleges Frank Cress, this indictment is quashed, and it is ordered by the court that the defendant be held for a new indictment." The court overruled the motion to quash the indictment, and to this ruling of the court the defendant duly excepted. The defendant then moved the court to quash the venire, upon the ground that the venire served upon him did not contain the name of one F. W. Dunham, who had been summoned and impaneled to serve as a talesman to fill a vacancy on the regular venire for the week, caused by the court excusing a juror for sickness. In support of this motion, there was evidence introduced showing that the court had excused one of the jurors who had been drawn and summoned as a juror for the week, upon the ground that he was sick, and that said Dunham was regularly drawn and impaneled as a talesman to supply the vacancy on the venire caused by excusing said juror, and that the name of said Dunham was not on the venire served on the defendant. The court overruled the motion to quash the venire, and to this ruling the defendant duly excepted. The defendant then objected to going to trial, upon the ground that 12 of the jurors drawn and impaneled as regular jurors for the week, and constituting a part of the regular venire for the week, which was served upon the defendant, were at that time out engaged in the consideration of another case. The court overruled this objection, and the defendant duly excepted. On the trial of the case, the state introduced one Frank Gress, who testified that he was robbed of a watch by the defendant, and there was other evidence introduced showing that the defendant was guilty of the offense charged in the indictment. The defendant, as a witness in his own behalf, testified that he did not assault Gress, nor take the watch from him. On the cross-examination of the defendant, he admitted that he had been convicted in the police court of Birmingham...

To continue reading

Request your trial
21 cases
  • Stemple v. State
    • United States
    • Alabama Court of Criminal Appeals
    • November 15, 1977
    ...to move to quash. Oakley v. State, 135 Ala. 15, 33 So. 23 (1902); Whittle v. State, 205 Ala. 639, 89 So. 43 (1921); Johnson v. State, 134 Ala. 54, 32 So. 724 (1902); Wimbush v. State, 237 Ala. 153, 186 So. 145 (1939). There was no request to withdraw the plea of not guilty. Therefore the mo......
  • Fealy v. City of Birmingham
    • United States
    • Alabama Court of Appeals
    • October 19, 1916
    ... ... diseases of human beings, without having first obtained a ... certificate of qualification from the state board of medical ... examiners, against the laws and ordinances of the city of ... Birmingham. The demurrers raise the question that the law or ... Such assignments as ... counsel ignore, we treat as having been waived and pretermit ... discussion thereof. Johnson's Case, 152 Ala. 93, 44 So ... 671; Rosenau v. Powell, 184 Ala. 396, 63 So. 1020 ... Error ... cannot be predicated upon the refusal of ... ...
  • Stephens v. State
    • United States
    • Alabama Supreme Court
    • April 21, 1949
    ... ... Attorney General insists that the trial court's action in ... overruling the defendant's objection to this argument ... finds support in the following cases from this jurisdiction: ... Grissett v. State, 241 Ala. 343, 2 So.2d 399; ... Mickle v. State, 226 Ala. 616, 148 So. 319; ... Johnson v. State, 134 Ala. 54, 32 So. 724 ...          In ... Grissett v. State, supra, the solicitor merely referred to ... what the evidence [252 Ala. 187] showed as to the ... defendant's prior conduct, without in any wise indicating ... that because of such prior conduct the defendant ... ...
  • Thomas v. State, 1 Div. 190
    • United States
    • Alabama Supreme Court
    • March 18, 1965
    ...court held that a motion to quash an indictment, to be available, must be made before arraignment and plea to the merits. Johnson v. State, 134 Ala. 54, 32 So. 724; Bell v. State, 227 Ala. 254, 149 So. 687; Wimbush v. State, 237 Ala. 153, 186 So. 145; Owen v. State, 255 Ala. 354, 51 So.2d 5......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT