Rogers v. State
| Decision Date | 03 February 1910 |
| Citation | 52 So. 33,166 Ala. 10 |
| Parties | ROGERS v. STATE. |
| Court | Alabama Supreme Court |
On Rehearing, February 26, 1910.
On Rehearing.
Appeal from Criminal Court, Jefferson County; S. L. Weaver, Judge.
Joseph Rogers was convicted of murder, and he appeals. Affirmed.
The record shows that the defendant was arraigned on April 15 1909, and pleaded not guilty, when a day was set for his trial, and juries ordered drawn. The arraignment was of Joseph Rogers and Jim Powell, charged in the same indictment with the crime of murder. On April 27th the defendant filed the motion to quash the indictment, and also demanded a severance upon the continuance of the cause to May 18, 1909. On that day the defendant renewed his demand for a severance and also called attention to the motion to quash the indictment, and filed a plea in abatement, which the court denied. The defendant then moved the court to allow him to substitute the indictment and his plea in abatement, which was denied. The defendant then requested to hear him on his motion to quash the indictment, which was also denied; he reserving exceptions at the time to each action.
Allen & Bell, for appellant.
Alexander M. Garber, Atty. Gen., for the State.
The record shows that the motion for a severance was not made until some days after the defendant was arraigned and pleaded not guilty. The action of the trial court in refusing said motion will not, therefore, be revised upon this appeal. Rule 31, p. 1525, vol. 2, Code 1907; Hudson v. State, 137 Ala. 60, 34 So. 854; Miller v. State, 130 Ala. 1, 30 So. 379; Austin v. State, 139 Ala. 14, 35 So. 879. Nor will the action of the trial court be revised for declining to receive the plea in abatement to the indictment and in overruling the motion to quash same, as they both came after the defendant had pleaded "not guilty" to the indictment. Crawford v. State, 112 Ala. 1, Moorer v. State,
115 Ala . 119, 22 So. 592.
The judgment of the criminal court is affirmed.
Affirmed.
On Rehearing.
It has been suggested for the first time upon this application that the jury that tried this case was drawn and organized under the act of 1907 (Loc. Acts 1907, p. 238), which was declared unconstitutional in the case of Crain v. State, 52 So. 31. It is true that said act has been condemned; but the record in the present case shows a compliance with the law as it existed before the attempted enactment of 1907, both as to the drawing and ordering of the venire and the return of the sheriff.
It is insisted, however, that the minute recital shows that the special jury was drawn by the court, instead of the judge and falls within the influence of the case of Scott v. State, 141 Ala. 39, 37 So. 366. The minute entry does recite that the jury was...
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...appears that the ruling was without error. Crawford v. State, 112 Ala. 1, 21 So. 214; May v. State, 115 Ala. 14, 22 So. 611; Rogers v. State, 166 Ala. 10, 52 So. 33; Wise State, 11 Ala.App. 72, 66 So. 128; 4 Mich.Ala.Dig. p. 113, sec. 176. The motion to quash the venire was properly overrul......
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...act, and did not mean court. Moreover, this Scott Case has since been explained and to a certain extent departed from. Rogers v. State, 52 So. 33, 166 Ala. 10; Gray State (Ala.Sup.) 39 So. 621. It may be that Judge Jones, when rendering the judgment at Linden, was not a court; yet, under se......
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