Rogers v. State

• Decision Date: 05 April 1906
• Citation: 40 So. 572,144 Ala. 32
• Parties: ROGERS v. STATE.
• Court: Alabama Supreme Court

40 So. 572

144 Ala. 32

ROGERS v. STATE.

Supreme Court of Alabama

April 5, 1906

Appeal from Circuit Court, Monroe County; J. T. Lackland, Judge.

"To be officially reported."

Andrew Rogers was convicted of murder, and he appeals. Affirmed.

Barnett & Bugg and Bayles & Hybart, for appellant.

Massey Wilson, Atty. Gen., for the State.

SIMPSON J.

The appellant (defendant) was tried and convicted of the offense of murder, and his punishment fixed at imprisonment in the penitentiary for life. The defendant moved to quash the indictment because 23 persons were drawn to serve as grand jurors; the contention being that, as section 4989 of the Criminal Code of 1896 provides that "not less than fifteen, nor more than twenty-one persons for each grand jury" shall be drawn from the jury box, the organization of this grand jury was illegal. Section 5269 of the same Code provides that "no objection can be taken to an indictment * * * on any ground going to the formation of the grand jury, except that the jurors were not drawn in the presence of the officers designated by law." The decisions of this court have been uniform to the effect that this latter section is an absolute limitation of the subject named in the statute, as the only cause which can be assigned in such cases. Linehan v. State, 113 Ala. 70, 21 So. 497; Kitt v. State, 117 Ala. 213, 23 So. 485; Lide v State, 133 Ala. 43, 58, 31 So. 953; Dunn v State, 39 So. 147. So this assignment is without merit.

It is next insisted that the court erred to the injury of the appellant in "not putting the state upon a showing as to what defendant expected to prove by the absent witnesses English and Cuthbert." It is true that, although the matter of continuance is, as a general rule, within the discretion of the trial court, and will not be reviewed, yet the courts will not allow this rule to operate to the extent of depriving a defendant of the benefits of the constitutional guaranty "to have compulsory process for obtaining witnesses in his favor." Walker v State, 117 Ala. 85, 88, 23 So. 670; Hill v State, 72 Miss. 527, 17 So. 375. In order, however, to bring the matter properly before this court, the defendant is required to make proper motions and exceptions in the court below, so that the record may show whether or not he has been deprived of a substantial right. The claim here is that, although subp nas had been issued for these witnesses and returned executed, yet the sheriff testified that the...