Mullins v. State, 8 Div. 147.
| Citation | 24 Ala.App. 78,130 So. 527 |
| Decision Date | 19 August 1930 |
| Docket Number | 8 Div. 147. |
| Parties | MULLINS v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Oct. 7, 1930.
Appeal from Circuit Court, Colbert County; J. Fred Johnson, Jr. Judge.
Jake Mullins was convicted of murder in the second degree, and he appeals.
C. P Almon, of Florence, for appellant.
Charlie C. McCall, Atty. Gen., and J. W Brassell, Asst. Atty. Gen., for the State.
The defendant was charged with murder in the first degree, but was convicted of murder in the second degree and sentenced to serve twenty years in the penitentiary for said offense.
It appears from the record that on the first Monday in October, 1929, the regular session of the circuit court of Colbert county was convened by the judge of said circuit court and a grand jury organized. The grand jury remained in session for four days. On the 10th day of October, 1929, the Attorney General of Alabama made a motion to discharge the grand jury so organized, on the ground, among others, that the jury box had been fraudulently and illegally filled, in that the jury box contained the names of three persons which were not placed in the jury box by the jury commissioners, nor were their names on the jury roll. It appears from the record that these three names were drawn by the court out of the jury box; that on October 10, 1929, the court sustained the motion of the Attorney General, the grand jury was discharged, the venire quashed, and the then present term of court adjourned. It further appears that the court thereupon ordered the jury commissioners to refill the jury box; that on the 16th day of October, 1929, the court entered on the minutes of the court an order calling a special term of the circuit court of Colbert county for Monday, the 21st day of October, 1929; that on the 16th day of October, 1929, the court drew a panel of seventy jurors from the jury box, which had been refilled, pursuant to the court's above-mentioned order, by the jury commissioners of said county, and ordered the same summoned to appear for jury duty on the 21st day of October, 1929; that on the 21st of October, 1929, the court organized the grand jury for the special session or term of said court, thus called, swore and charged them, and this grand jury so organized returned the indictment against the defendant under which he was convicted.
The defendant filed a plea in abatement to the indictment, setting up, first, that the grand jury organized by the court for the regular October session of the court was improperly discharged; second, that the court drew the panel from the jury box less than twenty days before the beginning of the special session of said court, in violation of section 8616 of the Code of Alabama 1923; third, that the grand jury for the special session or term was illegally organized, for that the grand jury for the regular October, 1929, session of said court was improperly discharged, and that the court could not organize another grand jury for the month of October, 1929, which was the time for the regular session of said court, nor could the court organize two grand juries for the one session of said court; fourth, that there was fraud in refilling the jury box from which the grand jury for the special session was drawn, in that the names of only five hundred and ten qualified jurors were placed in the jury box, when in fact there were between three and four thousand qualified jurors in said county; fifth, that there was further fraud in refilling the jury box, in that the jury commissioners of said county took in consideration, in passing upon the qualifications of the jurors to be placed in said jury box, certain murder cases that would come before said grand jury, and whether said jurors would be qualified or not.
The demurrers of the Attorney General to the plea in abatement were sustained by the court. The defendant then moved to quash the indictment upon the same grounds set up in his plea in abatement, and, after hearing evidence pro and con on this motion, the same was overruled by the court.
The defendant then filed a motion to quash the venire served upon the defendant to try this case, assigning fraud in refilling the jury box, as shown by grounds fourth and fifth above set out. The same evidence was offered in support of this motion that was offered on the motion to quash the indictment. The motion to quash the venire was overruled by the court.
After this motion to quash the venire was overruled, the defendant objected to the action of the court in requiring him to strike a jury from the list of jurors as presently constituted. This objection was based on the action of the court in excusing six jurors from the original list of one hundred jurors from which the defendant was to strike, thereby depriving him of the said six jurors without his consent. It was admitted by the court that the court excused said jurors from jury service after hearing and passing on their excuses and after exercising the discretion reposed in the court by section 8614 of the Code of Alabama 1923, without the consent of the defendant, and upon the grounds assigned by defendant in making his objection to the court's action in requiring him to strike from the list given him. The court overruled the defendant's objection and required him to strike the jury from the list as constituted after hearing and passing upon the excuses, and after qualifying the jury.
It appears that exception was duly reserved to each of the rulings of the trial court hereinabove set out. The jury was then impaneled and sworn, and the indictment was read to them, and the defendant pleaded not guilty to the indictment.
The grand jury drawn for the regular October term was discharged on motion of the Attorney General, on satisfactory proof before the court in support of the motion, to the effect that the jury box from which same had been drawn had been fraudulently and illegally filled, in that the names of three of the jurors constituting the venire for the regular October term did not appear on the jury roll and were not placed in the jury box by the jury commissioners. We hold that this was a sufficient cause for the court's action in discharging the grand jury. Caldwell v. State, 203 Ala. 412, 84 So. 272.
Under section 8630, Code of 1923, "no objection to an indictment on any ground going to the formation of the grand jury which found the same can be taken to the indictment, except by plea in abatement to the indictment; and 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 neither this objection, nor any other, can be taken to the formation of a special grand jury summoned by the direction of the court." This, of course, assumes that a lawful occasion is shown by the record for the creation of a special jury, and, when the original evidence upon which the court reached the conclusion is not set out in the record, and when, as here, the trial court has regularly ascertained and determined the existence of such occasion, the minute entry is conclusive of that fact, and no motion or plea in abatement is available. Bailey v. State, 172 Ala. 418, 55 So. 601; Reynolds v. State, 1 Ala. App. 24, 55 So. 1016.
The authority of the court to organize a special grand jury is derived from section 8632, Code of 1923, and the authority of the court to hold a special term is derived from section 8577, Code of 1923. This latter section seems to authorize the ordering and convening of a special term at any time when a lawful occasion therefor arises, and the fact that the special term was organized at a period covered by the regular term does not necessarily render the special term unauthorized or invalid. Young v. State, 170 Ala. 71, 54 So. 166.
The objection that the court drew the panel from the jury box less than twenty days before the beginning of the special session of said court, in violation of section 8617, Code 1923, is without merit....
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