Oliver v. State, 5 Div. 215

• Court: Alabama Supreme Court
• Writing for the Court: THOMAS, Justice.
• Citation: 166 So. 615,232 Ala. 5
• Docket Number: 5 Div. 215
• Decision Date: 12 March 1936
• Parties: OLIVER v. STATE.

166 So. 615

232 Ala. 5

OLIVER
v.
STATE.

5 Div. 215

Supreme Court of Alabama

March 12, 1936

Appeal from Circuit Court, Elmore County; Arthur Glover, Judge.

Arthur Oliver was convicted of murder in the first degree, and he appeals.

Reversed and remanded.

W. Howell Morrow, of Lanett, and Jacob A. Walker, of Opelika, for appellant.

A.A. Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.

THOMAS, Justice.

The defendant was indicted and convicted of murder in the first degree.

From the verdict and judgment of murder in the first degree imposing the death penalty, the appeal is taken. [166 So. 616]

It appears from the record proper that defendant was arraigned on January 18, 1935, and filed his motion to quash the indictment on the ground that it was returned by the grand jury which was impaneled on September 3, 1934. The motion alleged that the regular grand jury was discharged by calling a special session of court for that county on December 13, 1934, at which the true bill was returned.

The record shows that the grand jury for the county for its Fall term, 1934, was drawn and impaneled on September 3, 1934; that on December 12, 1934, the circuit judge ordered a special session of that court to convene on December 14, 1934, and commanded the sheriff to issue summons for the grand jurors; that the sheriff of said county forthwith summoned the members of the regular grand jury for the term to appear at the time named. The regular grand jury of that court convened pursuant to summons at the special session called by its presiding judge, returned the indictment against this appellant, and on his arraignment defendant moved to quash the indictment, which motion was duly overruled. The procedure to indictment and trial was in accordance with the statute, section 8665, Code of 1923. Riley v. State, 209 Ala. 505, 96 So. 599; Kilpatrick v. State, 213 Ala. 358, 104 So. 656; Hudson v. State, 217 Ala. 479, 480, 116 So. 800; Petty v. State, 224 Ala. 451, 140 So. 585. The record does not show that a special grand jury was called, but that the same grand jury which convened on September 3, 1934, for the Fall term of that court was not shown to have been theretofore discharged. Such inquisitorial body remained in session until dissolved by operation of law--by an order of the court, or by expiration of the term for which it was drawn and impaneled. Petty v. State; Riley v. State, supra; Whittle v. State, 205 Ala. 639, 89 So. 43; Caldwell v. State, 203 Ala. 412, 84 So. 272.

Under the provisions of the act of 1933 (Gen.Acts 1933, pp. 144, 145), there was no error in refusing defendant's motion to stay the trial in order to appoint a special commission or the superintendent of the state hospitals for the insane to examine him and report his mental condition when the crime was committed and at the time of the trial. This statute merely states or confirms the inherent powers of a court in the premises, as to a defendant to be placed upon trial for crime. Ala. Great Southern R.R. Co. v. Hill, 90 Ala. 71, 8 So. 90, 9 L.R.A. 442, 24 Am.St.Rep. 764; Id., 93 Ala. 514, 9 So. 722, 30 Am.St.Rep. 65. The former statute on the same subject, section 7178, Code of 1907, section 4575, Code of 1923, was held, not mandatory, merely discretionary, for the purpose of advising the court. Rohn v. State, 186 Ala. 5, 65 So. 42; Granberry v. State, 184 Ala. 5, 63 So. 975. The former statute bears marked similarity to the act of 1933 (Gen.Acts 1933, p. 144), and was held not mandatory. Gast v. State (Ala.Sup.) 167 So. 554.

In construing a statute, if its terms will permit, it should be construed to sustain its constitutionality. If this statute be held to be mandatory, a constitutional question will be presented, in that the right to pass upon the sanity of a defendant to be tried for crime in the circuit court, is a prerogative right that may not be denied that court. There was no error in the denial of the defendant's motion by the trial court.

Defendant's counsel insist that defendant was intoxicated and could not entertain the necessary intent and elements of murder in the first degree. The evidence as to this was in conflict; a jury question was presented under the decisions. The verdict and judgment was warranted by the evidence, and under the rule that obtains, the jury were authorized to find that the defendant was capable of entertaining the specific intent which constitutes an essential element and which caused him to commit the crime of murder for which he was convicted. Gilmer v. State, 181 Ala. 23, 61 So. 377; James v. State, 193 Ala. 55, 69 So. 569, Ann.Cas.1918B, 119; Sharp v. State, 193 Ala. 22, 69 So. 122; 30 C.J. 332; Cagle v. State, 211 Ala. 346, 100 So. 318; Laws v. State, 144 Ala. 118, 42 So. 40; Bell v. State, 140 Ala. 57, 37 So....