Owen v. State

• Decision Date: 22 February 1951
• Docket Number: 8 Div. 580
• Citation: 51 So.2d 541,255 Ala. 354
• Parties: OWEN v. STATE.
• Court: Alabama Supreme Court

Page 541

51 So.2d 541

255 Ala. 354

OWEN v. STATE.

8 Div. 580.

Supreme Court of Alabama.

Feb. 22, 1951.

Rehearing Granted March 22, 1951.

S. A. Lynne and Russell W. Lynne, of Decatur, for appellant.

Si Garrett, Atty. Gen., and Wallace L. Johnson, Asst. Atty. Gen., for the State. The following charge was refused to defendant:

'A. The court instructs the jury that if you are reasonably satisfied from the evidence in this case that defendant's pistol was discharged in a tussle or scuffle between the defendant and the deceased in some unaccountable way, and that the shot was accidental and without intention, on the part of the defendant, and that the shot accidentally and without intention on defendant's part struck the deceased, from the effects of which he died, then your verdict should be not guilty.'

The chart referred to in the opinion is as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

Encircled numerals indicate degree of kindred to the deceased. Straight lines indicate the lower person as issue of the next preceding higher person. Full cousins are indicated in red (shaded). On the chart, all cousins above full cousins are cousins in the ascendency, all below are cousins in the descendency. Consult State Statutes of Descent and Distribution for rights of persons of each relationship and degree of kindred.

BROWN, Justice.

The appellant, defendant in the circuit court, was indicted by a Grand Jury organized in the Circuit Court of Lawrence County for murder in the first degree, the indictment charging that he 'unlawfully, and with malice aforethought, killed Grady Burt Terry, by shooting him with a gun or pistol, against the peace and dignity of the State of Alabama.' On his trial he was convicted of murder in the first degree and sentenced to life imprisonment in the state penitentiary. From that judgment he has appealed.

The first contention made by appellant's learned counsel is that the record fails to show that defendant failed to plead to the indictment and that a plea of 'not guilty' was not interposed for him. This contention is without merit. The record affirmatively shows that the indictment was endorsed: 'Grand Jury No. 2. A True Bill', which indictment was endorsed by 'Duke Bailey, Foreman Grand Jury. Filed in open Court on the 1st day of August, 1950, in the presence of the Grand Jury.', such filing being endorsed 'Ernest Shelton, Clerk.' And the minutes of the court recite:

'This, the 1st day of August, 1950, came the State of Alabama, by its Solicitor, George C. Johnson, who prosecutes for the State of Alabama, and came also the defendant in his own proper person, and by attorney, whereupon the defendant being in open Court and being duly arraigned in open Court upon an indictment charging him with the offense of murder, by having the indictment read over to him, for his plea thereto, says that he is not guilty, upon which plea the Solicitor joined issue.

'It is therefore considered, ordered and adjudged by the Court that this cause be, and the same is hereby set for trial on August 21, 1950.', followed by order of the court drawing a special venire for the defendant's trial in compliance with the statute.

The defendant thereupon filed a motion to quash the indictment on the grounds that: '(1) Said indictment is grounded upon an order of the court for the organization of said grand jury, which order was without any warrant in the statutes or was contrary to its provisions. (2) Said indictment is grounded upon an order of the court for the organization of said grand jury, which order was without any warrant in the statutes or was contrary to its provisions, for that, a grand jury was drawn for the Circuit Court of Lawrence County, Alabama and impaneled on, to-wit: March 27, 1950, and said grand jury has not been dissolved or discharged by any recorded order of this court. (3) The indictment in this cause was found and returned into court by a grand jury that was impaneled by this court on July 31, 1950 and was based upon an order of the court for the organization of the grand jury made and entered on a day subsequent to July 3, 1950, and which order was without any warrant, for that, a grand jury for this court was duly drawn, summoned and impaneled and entered upon its duties as such on, to-wit: March 27, 1950, and which said grand jury has not been dissolved or discharged by any recorded order of this court.' This motion was made after the defendant was arraigned and pleaded not guilty and was overruled by the court without error. Code of 1940, Tit. 15, § 279; Hale v. State, 10 Ala.App. 22, 64 So. 530; Whitehead v. State, 206 Ala. 288, 90 So. 351.

Russell Coffey challenged for cause was a second cousin by affinity to the defendant and was, therefore, related to him within the fifth degree under the rules of the...