Reynolds v. State

• Decision Date: 30 June 1911
• Citation: 1 Ala.App. 24,55 So. 1016
• Parties: REYNOLDS v. STATE.
• Court: Alabama Court of Appeals

55 So. 1016

1 Ala.App. 24

REYNOLDS v. STATE.

Court of Appeals of Alabama

June 30, 1911

Appeal from Criminal Court, Jefferson County; S. L. Weaver, Judge.

W. P Reynolds was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Allen & Bell and Jim McKenzie Long, for appellant.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

PELHAM, J.

The present appeal is from a judgment of conviction of murder in the second degree rendered on the third trial of the defendant had on an indictment charging murder. The first trial resulted in a conviction of murder in the second degree, which was set aside, on motion of the defendant, on the ground of being tried before an illegal jury; the special jury law for the trial of capital cases in Jefferson county (Acts 1907, p. 238), under the provisions of which the jury to try defendant was selected on his first trial, being unconstitutional, and so declared in Crain v. State, 166 Ala. 1, 52 So. 31, and Graves v. State, 52 So. 34. ^[1]

The second trial resulted in a mistrial and discharge of the jury by the court. This action of the court on the second trial being without the consent of the defendant, he pleads on this (the third) trial former jeopardy, alleging that the discharge of the jury was without authority of law.

The indictment upon which the defendant was tried was returned at the April term, 1909, of the criminal court of Jefferson county, by a grand jury summoned by direction of the court, after the regular grand jury venire for that term had been quashed on motion of the solicitor. The motion of the solicitor to quash the venire drawn by the jury connissioners to constitute the grand jury for the April term, 1909, having been granted, the court proceeded to draw and have summoned a special venire to serve as grand jurors for the term, which grand jury was duly organized and was the grand jury that returned the indictment against the defendant, upon which he was tried. This grand jury returning the indictment was drawn, summoned, and organized on April 24, 1909, before the enactment of the present jury law. Acts 1909, p. 305, approved August 31, 1909. The defendant moved the court to quash the indictment, because not found by a legal grand jury, contending that the court was without authority of law in quashing the first venire drawn by the commissioners, and in organizing another grand jury, and that the grand jury summoned by direction of the court was not drawn in the presence of the officers designated by law. Section 7572 of the Code of 1907 specifically provides that the objection of the grand jury not having been drawn in the presence of the officers designated by law cannot be taken to the formation of a special grand jury summoned by direction of the court.

The grand jury drawn by the commissioners having been quashed by the court on motion of the solicitor, on satisfactory proof had before the court by sworn witnesses, in support of the motion to the effect that such grand jurors were not drawn and selected according to law, and the original evidence upon which the court reached the conclusion not being set out in the record, this court would indulge the presumption that it was sufficient to authorize the conclusion reached. Nor do we feel justified, on the evidence found in the record, in saying the trial court was not authorized to grant the state's motion to quash the venire.

The authority of the court to organize the special grand jury, after quashing the venire drawn by the commissioners and returned into court, was not derived from section 7257 of the Code, but from section 7258; and the objection of not having been drawn in the presence of the officers designated by law not being available (Code 1907, § 7572), there was no error committed in the court's ruling on the defendant's motion to quash the indictment.

Section 7258 of the Code of 1907 was first embraced in the codified laws of the state in the Code of 1896, after the decision in the case of O'Byrnes v. State, 51 Ala. 25, and similar cases, construing the rights of the court to organize a grand jury under the provisions of section 7257, which has been, with certain changes, on the statute books since 1811. Laws of Alabama, Toulmin's Dig. p. 496. Fryer's Case, 146 Ala. 7, 41 So. 172, cited by appellant, passes only upon the authority of the court to organize a grand jury at an adjourned term, construing the rights and authority of the court under an entirely different statute; section 5001 of the Code of 1896 being section 7260 of the present Code, as amended. In the cases cited by appellant, the primary court had undertaken to organize grand juries without any statutory warrant; while in this case the venire had been quashed by the court on motion regularly made, and not ex mero motu, whereupon it became the duty of the court, in obedience to the statute, to draw and order summoned a special grand jury for that term. Code 1907, § 7258.

From what has been said with respect to the court's ruling on the motion to quash, it will be seen that there was no error committed by the court in sustaining demurrers to defendant's second and third pleas in abatement, setting up substantially the same grounds as in the motion to quash, and in giving the general charge for the state on the third plea. Moreover, under the rule announced in Sparrenberger's Case, 53 Ala. 481, 25 Am. Rep. 643, and Nordan's Case, 143 Ala. 13, 39 So. 406, the question going to the legal existence of the indictment, it could not properly be raised by plea in abatement, but having been presented both ways, by motion to quash and plea in abatement, the mode of presentation in this case is not material.

There is no merit in defendant's pleas of autrefois acquit. The defendant's contention that, the jury in the first trial having found defendant guilty of murder in the second degree he was thereby acquitted of murder in the first degree is untenable, in that the record shows that such verdict was set aside on the motion of the defendant as void, because of the unconstitutionality of the jury law, under the provisions of which the jury to try the case was drawn and selected on that trial. The verdict and judgment having been set aside at the instance of the defendant, he estopped himself from pleading former jeopardy for anything...