Riley v. State

• Decision Date: 17 May 1923
• Docket Number: 4 Div. 39.
• Citation: 96 So. 599,209 Ala. 505
• Parties: RILEY v. STATE.
• Court: Alabama Supreme Court

96 So. 599

209 Ala. 505

RILEY v. STATE.

4 Div. 39.

Supreme Court of Alabama

May 17, 1923

Appeal from Circuit Court, Dale County; J. S. Williams, Judge.

Lemmie Riley was convicted of rape, and he appeals. Affirmed.

H. L Martin, of Ozark, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

THOMAS J.

The trial was had on an indictment for rape.

The Act of September 22, 1915 (Gen. Acts 1915, p. 707), provided that the circuit courts of the several counties of the state shall be open for the transaction of all business, or judicial proceedings, from the first Monday in January to and including the last Saturday of June of every year; and from the first Monday after the 4th of July to and including the last Saturday before Christmas Day of every year. Liverpool & London & Globe Ins. Co. v. Lowe, 208 Ala. 12, 93 So. 765; Engle v. Bronaugh, 208 Ala 162, 93 So. 868; Cleveland v. Little Cahaba Coal Co., 205 Ala. 369, 87 So. 567; Clio Banking Co. v. Brock, 204 Ala. 57, 85 So. 297. As pertaining to Dale county, the foregoing general act was not repealed by the act approved September 23, 1919, providing that circuit court shall be held as follows:

"In the county of Dale, at Ozark, on the third Monday in February, and on the third Monday after the last Monday in July, and may continue two weeks at each term. *** All laws and parts of law in conflict with this act be, and the same are hereby repealed." Gen. Acts 1919, pp. 534, 535.

It was permissible to pass such local law, notwithstanding the foregoing general law. Const. 1901, § 105.

The special session of the circuit court of that county was called on May 31, 1922, and its grand jury for the regular term that convened on the third Monday in February for "two weeks" was called to serve as the grand jury for the special term "so called" by the judge of that circuit. Under the act "to amend an act entitled 'an act to fix the time of holding the circuit court in the Third judicial circuit of the state of Alabama,' as amended and approved April 7, 1911" (Gen. Acts 1919, p. 534), the regular term of the circuit court in Dale county had not expired before May 31, 1922, when the special session was called and held, and at which the instant indictment of the defendant was returned.

Was the grand jury for said county (beginning on the third Monday in February, 1922, for the time or "term" of two weeks) available for the purpose for which the judge of the Third judicial circuit ordered it for the "special term" of the circuit court called for the date indicated in the order? The authority and power of the grand jury duly drawn and impaneled for the "February term" or call of that court, to act as a lawfully constituted grand jury for the special term and on the date of the return of the indictment, were duly challenged by defendant's plea in abatement, which was stricken on motion of the state and against objection and exception of the defendant. In Whittle v. State, 205 Ala. 639, 642, 89 So. 43, 45, it was said:

"*** A grand jury once regularly impaneled is presumed to continue until dissolved by operation of law at the expiration of the term at which it is impaneled, or by an order of the court."

The plea in abatement was permitted to be filed on June 5, 1922, after defendant had pleaded to the merits on May 31, 1922. This motion was not heard after plea of not guilty, as a matter of right to defendant, but as the result of the exercise of a sound discretion by the court. Before the plea to the merits had been interposed, such motion and the hearing thereof were available to defendant as a matter of right. Whitehead v. State, 90 So. 351, 206 Ala. 288. The court having exercised a sound discretion in the hearing, we will consider the ruling as if the plea in abatement had been interposed before defendant had pleaded not guilty to the indictment.

In Caldwell v. State, 203 Ala. 412, 415, 84 So. 272, construing General Acts 1915, § 13, p. 812, and General Acts 1909, § 18, p. 312 it is declared:

"The grand juries so impaneled are such 'for that term of the court,' unless dissolved by order of the court. A grand jury, being a part of the court, can only be dissolved by operation of law or order of the court served by it. *** A grand jury once regularly impaneled is, nothing to the contrary being shown, presumed to continue until dissolved by operation of law or order of the court."

Thus the grand jury of Dale county for the term of the circuit court, at which the call session of the court was had, expired by operation of the general law with that term, the last "Saturday of June," unless sooner discharged by the court, and such grand jury, not having been theretofore dissolved by law or discharged by order of the court, was available for the purposes disclosed in the subsequent order (that of May 31, 1922) of the court, calling that special term or session. The act of September 23, 1919, was merely to fix the times of holding court in the several counties of the Third circuit; such is its title, and embraced in the subject-matter of the act. The indictment of defendant was found by a duly organized and acting grand jury of Dale county, and defendant's plea in abatement, etc., was without merit. Whittle v. State, infra; Caldwell v. State, supra. This is true, though in the order of the judge calling the court for May 31, 1922, he says:

"It is further ordered that summons issue and be served upon the grand jury, such grand jury not having been discharged at the last regular term of such court, and the same having been held and being still the grand jury of said court." (Italics supplied.)

This order could not be said to have referred to the former term and grand jury that expired by operation of law on the "last Saturday before Christmas Day" of 1921. It could only refer to the term then existing when the order was made-that extending "from the first Monday in January (1922) to and including the last Saturday of June" of that year-and only to the grand jury for that term, which had been held after the spring term, as it is designated, of court beginning the third Monday in February and continuing two weeks. There was no error in the foregoing rulings of the trial court.

Of defendant's motion to quash the venire, it will be observed that the record shows the judge ordered the jury box brought into the courtroom and drew therefrom the names of 75 persons to constitute the jury for the trial of cases during the week in which defendant's case was set for trial. This drawing of the jury had been preceded by the order for the venire which the judge was to draw-the names of 75 persons for jury services. This order was:

"It is therefore ordered that the sheriff bring into the courtroom of said county, at Ozark, the jury box for said county, and that the judge draw therefrom the names of 75 persons found therein to constitute the juries for the trial of cases during the week beginning Monday, June 5, 1922, and for transaction of such matters of business as may properly come before said court for its disposition. It is further ordered that this order be spread on the minutes of the court."

It was dated May 31, 1922, and signed by the judge of the Third judicial circuit. It is observed that in this order the court did not draw "regular jurors for the week" and "special jurors" for the trial of the defendant, as required by Acts 1919, § 32, p. 1040. Vann v. State, 207 Ala. 152, 92 So. 182. Of this the Attorney General says, in his argument:

"From a technical standpoint, this action of the court was erroneous for the reason that the statute requires the drawing of the regular juries for the week and special juries in cases of this nature."

The same irregularity, however, occurred in the case of Umble v. State, 207 Ala. 508, 93 So. 531, where it is said:

"In Whittle v. State, 205 Ala. 639, 642, 89 So. 43, it was held that a special venire for the trial of a capital case should be composed of two 'different' elements, viz.: (a) The 'regular juries' drawn for the week the capital case is set; and (b) the special jurors drawn to afford the number for the special venire fixed in the order of the court. In declining, expressly, to draw any names of persons to serve as regular jurors for the week beginning January 24, 1921, the trial court was in error, thereby omitting the designation of one of the elements the law contemplates should contribute to constitute a 'special venire' in capital cases."

The court, in that case, demonstrated that no reversible error resulted from this omission, and concludes with the announcement:

"It, therefore, results that no prejudice to defendant attended the court's declination to constitute 'regular juries' for the week defendant was tried."

That is to say, the conclusion there announced was that, where, in a capital case, the trial judge refused to draw regular juries, as well as special jurors, as required by the jury law, and instead drew 100 names with which to supply the venire of 90 special jurors, the error, did not operate to defendant's prejudice, "the names being drawn from the same jury box in any case." It results that under this authority there was no prejudicial error committed as to the venire as ordered, drawn, and constituting the special venire provided by law for the trial of the defendant under the indictment for a capital felony.

Under the application for a change of venue in criminal cases, it is the duty of the judge of the court, in a fair and impartial way, from the application and the evidence offered in support of and against it, to ascertain whether the defendant can "reasonably be expected to obtain that fair and impartial trial at the hands of an unbiased and unprejudiced...