Patterson v. State

• Decision Date: 19 January 1911
• Citation: 171 Ala. 2,54 So. 696
• Parties: PATTERSON v. STATE.
• Court: Alabama Supreme Court

54 So. 696

171 Ala. 2

PATTERSON v. STATE.

Supreme Court of Alabama

January 19, 1911

Appeal from Clay County Court; E. J. Garrison, Judge.

Mal Patterson was convicted of manslaughter, and appeals. Affirmed.

The orders of the court were to summon 20 men, whose names appear on the venire of grand jurors. In obedience to that summons the sheriff summoned all except 2, reported as "not found" in his county. When the grand jury was organized the remaining 18 answered to their names; but the court for good and sufficient reasons shown did excuse 3 of them leaving 15 jurors present, who were duly impaneled as the grand jury for that term of the court. On a later day of the court, the fact that the foreman of the grand jury was connected by marriage with the party sought to be charged with an offense against the law of Alabama having been made known to the presiding judge in open court, the foreman was excused from the consideration of the case of State v. Grover Ingram, and the court appointed as special foreman A. Blake Steed, a member of the grand jury as originally organized. The proceedings further show that on the return of the indictment in open court the original foreman, together with 14 other grand jurors, were present, and that they returned into open court 25 true bills, together with an additional special report of one indictment, signed by A. Blake Steed as such foreman, in the consideration of which the regular foreman did not participate.

The defendant pleaded in abatement and by way of motion to quash the indictment as follows: "(1) That the grand jury which preferred the indictment was not drawn from the hat or box containing the whole list of jurors drawn, passed on, and qualified for this term of court. (2) For that the grand jury which preferred the indictment was of less number than 18, to wit, 15. (3) The names of 18 jurors to compose the grand jury were not drawn from the hat or box containing the whole list or venire of jurors qualified for this term of the court. (4) For that the alleged grand jury which preferred the indictment was not composed of 18 qualified citizens of the county. (5) For that the box or hat in which the presiding judge drew the names of the citizens who composed the grand jury in open court did not contain the name of 18 citizens of the county whose qualifications had been ascertained by the court. (6) For that the grand jury which preferred this indictment consisted of only 14 members."

Whatley & Cornelius, for appellant.

Alexander M. Garber, Atty. Gen., and Black & Whatley, for the State.

ANDERSON J.

The jury law (Acts Sp. Sess. 1909, p. 305) is a general law, and is exclusive, in so far as it may operate; and it applies to all courts in the state, and repeals all laws, local special, or general, that may be in conflict therewith. This law, however, does not repeal article 8, p. 729, of the Criminal Code, as to what may constitute a grand jury, and which provides for its formation, oath, powers, duties, and business. Section 7282 provides that at least 15 persons must be sworn on the grand jury. Section 7283 says what must be done to complete the grand jury, if 15 do not appear; and it may be that the act provides the manner of completion, in case a sufficient number do not appear to constitute a legal grand jury of 15, and, therefore, repeals section 7283 to this extent, but no further. It is no doubt the purpose of the act to provide, in most cases, for the organization of a grand jury to be composed of 18 persons, and which can, as a rule, be done, in a large majority of cases, as section 18, requires that the first 18 drawn shall constitute the grand jury, and we know that in most of the courts in this state, and especially the circuit court, there are usually petit juries needed and used during the same week that the grand jury is organized, and when this is the case there will in almost every instance be a sufficient number of persons present to assure 18 grand jurors, as the first 18 to be drawn shall constitute the grand jury; but even in this instance, if there are not enough jurors present to obtain 18 grand jurors, section 18 makes no provision requiring that the number be increased to 18, and under the terms of sections 7282, 7283, of the Code, the court would only have to increase the number when the number available was less than 15. Moreover, there are city and county courts in the state, and sometimes the circuit courts do not always have or need petit juries during the week of the organization of a grand jury, and the act provides for instances of this nature, by authorizing the judge to draw a venire for same, and which may contain such number of names as he may deem necessary.

It is true section 18 provides that they must be "drawn summoned and impaneled, as provided in this act"; but the act in question does not require that 18 be impaneled, unless that number appears and is ready to serve, and does not preclude the organization of a grand jury from less than 18, leaving a field of operation for section 7282, which defines a grand jury of 15 as a legal one, and section 7283, which provides for an increase only in case the number is reduced below 15. This law was no doubt intended to reform, and to some extent revolutionize, the jury system, and in cases where the court had petit juries the same week of the organization of a grand jury there could be little difficulty in having a grand jury composed of 18 persons, thus giving less opportunity to obstruct the finding of indictments by a few unscrupulous or obstreperous men who may be members thereof. So, too, would the grand jury be unknown until the drawing and organization, as all the names will go in the box, and no one can know who would be the grand jurors until the first 18 names are drawn. The Legislature, however, had in mind numerous instances, where grand juries would be organized at times when petit juries were not needed or drawn, and made ample provision therefor, both in section 18 and section 24, and which clothe the judge with much discretion as to the number to be drawn, and nowhere does it appear in the act that it will require 18 persons to constitute a legal grand jury, or that it be organized with 18 persons, except where they appear and are ready for service. It results that in some instances a grand jury...