Murphy v. State

Decision Date31 January 1889
Citation86 Ala. 45,5 So. 432
PartiesMURPHY v. STATE.
CourtAlabama Supreme Court

Appeal from circuit court, Elmore county.

T N. McClellan, Atty. Gen., for the State.

STONE C.J.

The jury law approved February 28, 1887, was in force in Elmore county at the time the grand jury was drawn and organized which preferred the indictment in this case. Sess. Acts 1886-87, p. 151; Code 1886, § 4299, note. The sole question raised on this appeal is that the grand jury was not drawn according to the provisions of the statute. The alleged error is as follows: The statute (section 4) provides that the jury commissioners shall first draw the requisite number of names who shall constitute the grand jury, and "next the names of the requisite number of persons to serve as petit jurors." This statutory regulation was not conformed to in the present case. On the contrary, the jury commissioners first drew a sufficient number of names for both grand and petit jury service, and then selected from the names so drawn the requisite number to serve as grand jurors. From the names so selected the grand jury was organized. These are the admitted facts. The defendant had been arrested, and was in custody, under the charge for which he was indicted, tried and convicted. When the venire was called, and before any steps were taken in the organization, the defendant challenged the array, for the irregularity above pointed out. He proved the facts as averred, and they were not controverted. The court overruled the motion to quash the venire, organized the grand jury from the names so selected, and the defendant excepted.

We have several times held that the later statutes, regulating the drawing and impaneling of juries, have not repealed section 4445, Code 1886, (section 4889, Code 1876.) That section 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." Abernathy v. State, 78 Ala. 411; Harrington v. State, 83 Ala. 9, 3 South. Rep. 425. And our uniform ruling has been to disallow all defenses, save one, which rest on irregularity in the drawing or impaneling of the grand jury, except the statutory ground that they "were not drawn in the presence of the officers designated by law." Dotson v. State, 62 Ala. 141; Bales v. State, 63 Ala 30; Cross v. State, Id 40; Green v. State, 73 Ala. 26; Nixon v. State, 68 Ala. 535. The additional exception referred to above is where there is some order of the court, or some action of the presiding judge appearing of record, and relating to the organization of the grand jury, which is without warrant in the statute, or is contrary to its provisions. Cross v. State, 63 Ala. 40; Billingslea v. State, 68 Ala. 486; Posey v. State, 73 Ala. 490. Under our several rulings we...

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9 cases
  • Linehan v. State
    • United States
    • Alabama Supreme Court
    • February 4, 1897
    ... ... that there is some order of the court, or some action of the ... presiding judge, appearing of record, and relating to the ... organization of the grand jury, which is without warrant in ... the statute, or is contrary to its provisions ... Billingslea v. State, 68 Ala. 486; Murphy v ... State, 86 Ala. 46, 5 So. 432. In the last case cited, it ... was said, Stone, C.J., speaking for the court: "We have ... several times held, that the later statutes regulating the ... drawing and impaneling of juries have not repealed section ... 4445, Code 1886 (section 4889, Code ... ...
  • Spivey v. State
    • United States
    • Alabama Supreme Court
    • June 29, 1911
    ... ... statute, or was contrary to its provisions, then the ... objection could not be taken by motion in arrest of judgment, ... and probably not by plea in abatement, or motion to quash, ... under certain conditions. See Peters and Ramsey Cases, supra; ... Billingslea's Case, 68 Ala. 486; Murphy's Case, 86 ... Ala. 46, 5 So. 432 ... As ... remarked by Brickell, C.J., in Ramsey's Case, supra, it ... is to be regretted that errors of this kind are not of ... infrequent occurrence. But when such errors do occur, or are ... made to appear in the appropriate manner prescribed by ... ...
  • Tanner v. State
    • United States
    • Alabama Supreme Court
    • June 26, 1891
    ... ... 2, ... the record showed that all the grand jurors were sworn except ... the foreman, and was silent as to him. We held that this was ... no ground of reversal. Floyd v. State, 30 Ala. 511; ... Billingslea v. State, 68 Ala. 486; Harrington v ... State, 83 Ala. 9, 3 South. Rep. 425; Murphy v ... State, 86 Ala. 45, 5 South. Rep. 432; Dotson v ... State, 88 Ala. 208, 7 South. Rep. 259 ... Nor was ... there anything in the demurrer for misjoinder of counts. The ... two offenses charged are not alone of the same family of ... crimes. They are identical in all that ... ...
  • Wilkins v. State
    • United States
    • Alabama Supreme Court
    • December 17, 1896
    ... ... the time and manner of exercising and performing them, has ... been construed as mandatory, and a strict compliance with its ... requirements has been deemed essential to support the ... regularity and validity of their action. Murphy v ... State, 86 Ala. 45, 5 So. 432; Wells v. State, ... 94 Ala. 1, 10 So. 656; Johnson v. State, 102 Ala. 1, ... 16 So. 99; Steele v. State (Ala.) 20 So. 648. The ... cases in which this construction has been given the statute, ... and enforced, show, when carefully analyzed, that the ... ...
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