Roe v. State

• Decision Date: 12 June 1887
• Citation: 2 So. 459
• Parties: ROE v. STATE.
• Court: Alabama Supreme Court

2 So. 459

ROE v. STATE.

Supreme Court of Alabama

June 12, 1887

Appeal from county court, Hale county.

Indictment for wanton injury to domestic animal. The opinion states the facts.

Syllabus by the Court.

The grant jury in Alabama is not legally organized, when the record shows, expressly or by clear implication, the foreman was not sworn; as where it recites that W.B., "one of said persons, was by the court appointed foreman of said grand jury, after which each of the other persons so selected as grand jurors was duly sworn."

Under statutory provisions, (Acts Ala. 1884-85, p. 138,) a criminal case will not be reversed by this court, on account of any defects in the administration of the oath to the grand or petit jury, unless objection was duly taken in the court below; but the statute does not apply, where the record fails to show that any oath whatever was administered.)

Thos. R. Roulhac, for appellant.

Thos. N. McClellan, Atty. Gen., contra.

CLOPTON J.

The clerk certifies that the record contains a full and complete transcript of the organization of the grand jury which preferred the indictment. It fails to show, expressly or by clear implication, that the foreman was sworn, without which there cannot be a legally organized grand jury. The recitals are: "William B. Inge, one of said persons, was by the court duly appointed foreman of said grand jury, after which each of the other persons so selected as grand jurors was duly sworn as the law requires." The statutes provide that the foreman shall be first sworn, and after the oath has been administered to him, it shall be administered to the other grand jurors; but the facts, as shown by the record, are that the foreman was appointed, and the next step was to administer the oath to each of the others. Silence as to the foreman, and the expression that " each of the other persons" was duly sworn, excludes any inference or presumption that the foreman was sworn, if such presumption can be indulged in a criminal case. State v. Hughes, 1 Ala. 655.

It is insisted that the defect is remedied by the late statute which provides that no criminal cause shall be reversed because of any defect in the administration of the oath to any grand or petit jury, unless the record discloses that objection, based on such defect, was taken in the court below during the progress of the trial. Acts 1884-85, p. 138. The intention of the statute is to...