Nordan v. State

• Decision Date: 13 April 1905
• Citation: 39 So. 406,143 Ala. 13
• Parties: NORDAN v. STATE.
• Court: Alabama Supreme Court

39 So. 406

143 Ala. 13

NORDAN v. STATE.

Supreme Court of Alabama

April 13, 1905

Appeal from Circuit Court, Henry County; John P. Hubbard, Judge.

"To be officially reported."

Walter L. Nordan was convicted of murder in the first degree by administering or causing to be administered to decedent poison, and he appeals. Reversed.

Espy &amp Farmer, for appellant.

Massey Wilson, Atty. Gen., and Wm. C. Oates, for the State.

DOWDELL J.

The defendant was tried and convicted on an indictment charging him with murder. The indictment as returned into court by the grand jury contained 11 counts. A nolle prosequi was afterwards, on motion of the solicitor, entered as to four of them--the third, fourth, fifth and seventh. To the remaining counts demurrers were interposed by the defendant, which demurrers the court overruled. Some of these counts are wanting in proper averments, while others contain unnecessary averments. The first and second fail to aver that the defendant killed the deceased, except, possibly, in an inferential way. There is, to say the least, grave doubt of their sufficiency. As the indictment must be quashed for reasons that will be stated later on, and another indictment will have to be preferred, we take occasion here to say that we can see no necessity for multiplying the counts in the indictment, when two would be sufficient to meet any phase of the evidence in the case. For illustration: With proper commencement and conclusion of the indictment as provided in section 4923 of the Criminal Code of 1896, a count charging that the defendant, Walter L. Nordan, unlawfully and with malice aforethought killed Nola Nordan by administering to her poison, to wit, strychnine; and a second count, charging that Walter L. Nordan unlawfully and with malice aforethought killed Nola Nordan by causing to be administered to her poison, to wit, strychnine.

There was no error in overruling the defendant's motion to quash the venire from which a jury to try the defendant was to be selected. Twenty-four regular jurors had been drawn and summoned. Three failed to appear or were excused. The court then organized and impaneled jury No. 1, of 12 jurors, but did not immediately complete jury No. 2, and proceeded withthe business of the court, hearing and trying one case with jury No. 1, and, furthermore, made an order setting a day for the trial of the defendant and ordered 50 special jurors to be drawn according to law, who, together with the regular jurors organized for the week, would constitute the special venire in defendant's case. On the same day being the first day of the term, jury No. 2 was organized and the deficiency supplied, as provided by section 5011 of the Code of 1896. With jury No. 1 and jury No. 2 as thus organized and the 50 special jurors, the special venire was made up and duly served on the defendant. The defendant was in no wise prejudiced, nor deprived of any right by the action of the court. Jury No. 2 was completed as required by the statute, and, as completed, the law made it a part of the venire for the trial of the defendant.

It was immaterial whether the juror Sanders lived in the Columbia or Abbeville division of the circuit court of Henry county. If otherwise qualified, and he was a resident householder or freeholder of the county, he was a competent juror. The act creating the several divisions of the circuit court of Henry county does not fix as an additional qualification of the juror that he shall live in the division of which he is summoned as a juror. Acts 1884-85, p. 726.

The matter of the sufficiency and reasonableness of the excuse of a juror for not serving as such is largely within the sound discretion and judgment of the trial court, when it comes to excusing one by the court for good and sufficient cause from service who has been drawn to serve as a juror. We are not prepared to say that to save one's property in emergency from destruction is not a sufficient reason for the trial court to excuse as for good cause shown. Nor are we prepared to say that the court, in the instance of the juror Trammel abused its power in excusing said juror for cause under the circumstances stated.

A motion was made by the defendant to strike the indictment, which was overruled by the court, and then followed a motion to quash, which was also overruled. The defendant then filed pleas in abatement to the indictment, upon which issue was joined by the state, and a trial had by a jury, upon which trial, on the evidence introduced, the court at the request of the solicitor in writing gave the general affirmative charge in favor of the state. No question was raised as to the timeliness in making the motions or filing the pleas; but a hearing of the same was entered into, and evidence in support thereof regularly introduced, and a judgment rendered on the merits. The main grounds of the motion, as well as of the plea in abatement, went to the legality of the grand jury that found and returned the indictment.

In support of the motions and pleas the following facts were shown: At the regular fall term, 1902, of the circuit court, a grand jury was regularly organized, and, as organized, consisted of 15 members, the minimum number for a duly and legally constituted grand jury. When they entered upon the discharge of their duties, the defendant's case, in which the present indictment was found, came before them for investigation, and it was then ascertained that 2 of the members of the grand jury, H. T. Adams and W. J. G. Mouring, were disqualified to act by reason of their relationship to the defendant, and they were permitted to withdraw, and did withdraw, from the grand jury pending the investigation and consideration of said case. The withdrawal of these 2 grand jurors left 13, a competent number under the statute to proceed with the investigation and to act upon a bill, and these 13 did proceed with the investigation and had examined several witnesses, when another one of the grand jurors, George L. Wright, was temporarily excused by the court to attend the funeral and burial of a kinsman, and was absent a day and a half. With this juror temporarily absent there were left only 12 grand jurors. It was under this condition that the court by an order had 3 other persons, Fleming, Laney, and Doswell, summoned and sworn and placed on the grand jury, thereby completing the number up to 15; and this for the purpose of investigating, considering, and acting upon the charge against the defendant then pending before the body. As thus constituted, and with the said three persons so added to the grand jury and acting with it, the investigation was proceeded with, the several witnesses who had been previously examined being recalled and examined, as well as others, and upon consideration the present indictment was found and returned into court. After this action the 3 jurors, Fleming, Laney, and Doswell, were excused from further service on the grand jury, and the two, Adams and Mouring, who because of their relationship to the defendant had withdrawn pending the said investigation, returned to service in the discharge of their duties as grand jurors, and the juror, Wright, who had been temporarily excused from court to attend the funeral of his kinsman, after the indictment had been acted upon and returned into court, also returned and entered upon his duties as a grand juror, and continued to act as such until the grand jury had completed its labors for the term and were finally discharged by the court. After the indictment was returned into court, further than the formal arraignment of the defendant, no action was taken in the case at that regular term, and the court thereupon made an order for an adjourned term, to be held beginning on the first Monday in December following. It was at this adjourned term that the motions were made and pleas in abatement were filed. As a part of the record there is a minute entry of the court which recites that "the grand jury at this term came into court, with the solicitor, and made known to the court that they had under consideration the case, to wit, 'The State v. Walter Nordan,' charged with the murder of Nola Nordan, and that by reason of the relationship to the person charged the number of the grand jury was reduced below the number of 13, and the court in accordance with the statute supplied the deficiency by the selection according to law from the qualified bystanders of W. Y. Fleming, Z. W. Laney, and J. M. Doswell, and they were legally sworn as such grand jurors to fill such deficiency, and the bill of indictment in such case was returned into court by the grand jury so constituted. And the entry of record as to said matters of said selection of said grand jurors and of the said indictment against said Walter Nordan was made on a day of the adjourned term of this court." This entry bears date of November 10, 1902. Following this is the minute entry of the organization of the adjourned term on the 1st day of December, 1902.

It will thus be seen that the grounds of objection in the motions and in the pleas in abatement were not directed to a want of qualification in any member to become a juror, nor to the manner of drawing and summoning the jurors to be organized as a grand jury, nor to the original formation of the grand jury, but to the illegal action of the court subsequent to the regular organization of the jury. The irregularity objected to is not such as is contemplated in section 5269 of the Code, and is, therefore, not embraced within the curative provisions of the statute. In Billingslea v. State, 68 Ala. 486, it was said: "There are but two classes of cases in which objections can be sustained to an indictment when they are based on irregularities in the...