Kinnebrew v. State
| Decision Date | 13 February 1902 |
| Citation | 31 So. 567,132 Ala. 8 |
| Parties | KINNEBREW v. STATE. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Jackson county; J. A. Bilbra, Judge.
John Kinnebrew was convicted of robbery, and appeals. Reversed.
Milo Moody, for appellant.
Chas. G. Brown, Atty. Gen., for the State.
An indictment proceeds from, and is the act of, the grand jury, and to give it validity no function of the solicitor is necessary. Joyner v. State, 78 Ala. 448. Whether his appointment was valid or not, the mere fact that the solicitor appeared, without more, before the grand jury, when the indictment was found, did not affect the validity of the indictment, and therefore the motion to quash did not raise the question of his eligibility for appointment.
Robbery being an offense which may be punished capitally, a judgment of conviction therefor cannot be upheld on appeal unless the record shows affirmatively that a day was set for trial, and that a special jury was drawn in accordance with the requirements of the statute (Cr. Code, § 5004). Burton v. State, 115 Ala. 1, 22 So. 585, and cases there cited. That part of the record, if there was any such in the trial court, is not of the class which, under section 4325 of the Criminal Code, may properly be omitted from the transcript.
Reversed and remanded.
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Benton v. State
... ... not err in sustaining the State's demurrers to his pleas, ... and its motion to strike his motion to quash. The matters he ... sets up in his pleas, and in his motion, do not come up to ... the requirements requisite to their sustention. Hall v ... State, 134 Ala. 90, 32 So. 750; Kinnebrew v ... State, 132 Ala. 8, 31 So. 567; Jones v. State, ... 150 Ala. 54, 43 So. 179; Blevins v. State, 68 Ala ... 92; Cross v. State, 78 Ala. 430; Wimbush v ... State, 237 Ala. 153, 186 So. 145; Reynolds v ... State, 27 Ala.App. 590, 176 So. 816 ... It is ... well understood that ... ...
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Scott v. State
... ... objection was made or raised on that trial as to failure to ... provide and give the defendant a proper venire; and the ... judgment entry fails to disclose such action as to venire of ... the grand or petit jury ... We may ... observe that in the case of Kinnebrew v. State, 132 ... Ala. 8, 31 So. 567, 568, which was decided before the ... statutes were amended, it was declared that under these ... statutes (sections 4325, 5004, Code 1896), in a trial for ... capital felony, judgment cannot be upheld "unless the ... record shows affirmatively that a day ... ...
- Barron v. State
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Davis v. State, 6 Div. 449
...that in them no such question was raised on the trial. In the cases of Morris v. State, 146 Ala. 66, 41 So. 274, and Kinnebrew v. State, 132 Ala. 8, 31 So. 567, as pointed out in the Scott case, supra, it was held that under the statute then in existence a failure of the record to contain t......