Smith v. State, 5 Div. 253.

• Decision Date: 25 May 1948
• Docket Number: 5 Div. 253.
• Citation: 38 So.2d 341,34 Ala.App. 45
• Parties: SMITH v. STATE.
• Court: Alabama Court of Appeals

38 So.2d 341

34 Ala.App. 45

SMITH v. STATE.

5 Div. 253.

Alabama Court of Appeals

May 25, 1948

Rehearing Denied June 29, 1948.

Jacob A. Walker and R. C. Smith, both of Opelika, for appellant.

A A. Carmichael, Atty. Gen., and Thos. F. Parker, Asst. Atty Gen., for the State.

HARWOOD Judge.

This appellant was indicated for carnally knowing, or abusing in the attempt to carnally know, a girl under the age of twelve years, a statutory offense denounced by Section 398, Title 14, Code of Alabama 1940.

The appellant was about twenty years of age at the time of this alleged offense, and had just recently been honorably discharged from the Navy.

In the jury trial below the court instructed the jury, among other things, that included in the charge of carnal knowledge was the offense of assault with intent to rape, and further instructed them as to the form of their verdict should they find the defendant guilty of assault with intent to rape.

The defendant reserved and exception to the court's instruction pertaining to the verdict for assault with intent to rape.

The jury's verdict found the defendant guilty of assault with intent to rape.

The evidence introduced by the state tended to show that the little girl around whom this case centers was about six years of age. Her father operated a ferris wheel which was part of a carnival operating in Opelika at the time of this alleged occurrence.

The defendant took this little girl into a secluded part of one of the carnival's concessions. There, according to this child, he laid her down, took her panties off, and 'put his thing down there.'

Injury to the child's genitals was shown by medical testimony.

The proprietress of the carnival observed the recumbent child and saw the defendant near by pulling up his trousers. She told the child to run, and then hit the defendant. At about this same time she summoned other nearby men to her assistance and the defendant was taken into custody.

The defendant, testifying in his own behalf, claimed not to have been conscious of any of his conduct on this occasion, nor to remember any of it, because of the consumption by him of a large quantity of gin.

Several character witnesses also testified in defendant's behalf.

The defendant timely filed a verified plea in abatement. This plea, with its amendments contained, among other grounds, the following:

'3. The grand jurors who found the indictment were not drawn from the jury box by the officers designated by law to draw the same.'

'10. The grand jury was drawn from the jury box in the vault of the Circuit Clerk's office while the clerk of the court was not present and while only the judge and the sheriff of Lee County were present; and as the judge drew the card containing each name from the jury box, he called the name of the prospective juror to the sheriff of Lee County and the Sheriff made a statement as to said juror and thereupon the judge either retained the said juror's card as a member of the panel from which the grand jury in this case was formed or dropped the same back in the box.'

'13. The grand jurors who found the indictment were not drawn from the jury box by the officer designated by law to draw the same but were in fact selected by the sheriff of Lee County, Alabama, in that while a judge of this circuit drew from the jury box the names of said jurors he immediately submitted the same to the approval of the sheriff of this county, and if the sheriff approved the same, they were accepted on the panel, and if he disapproved the persons drawn, their names were dropped back in the box and they were not placed on the panel from which the grand jury in this case was drawn.'

'15. The charge against the defendant in this case is a felony and to try him on the indictment in this case would deprive him of the rights guaranteed to him under Section 6 of Article I of the Constitution of Alabama, 1901, in that he would thereby be deprived of life or liberty without due process of law in that no indictment has been returned in this case conforming to due process.'

The State demurred to the plea in abatement. The material grounds of this demurrer are that the plea does not allege or show that the grand jury was not drawn in the presence of the officers designated by law to draw same; does not show that the grand jury was not drawn as prescribed by law; the plea does not set up any lawful objection to the indictment; and does not allege any facts showing that the defendant has been, or would be deprived of life or liberty without due process of law.

The court sustained the demurrer. We must therefore for pleading purposes treat the facts averred in the plea as true. Spivey v. State, 172 Ala. 391, 56 So. 232; Doss v. State, 220 Ala. 30, 123 So. 231, 68 A.L.R. 712.

The above plea in abatement attacks the validity of the venire facias juratores, or general venire out of which the grand and petit juries are formed. The provisions for the drawing of such general venires are found in Section 30, Title 30, Code of Alabama 1940, and are as follows:

'At any session of a court requiring jurors for the next session, the judge, or where there are more than one, then any one of the judges of the court shall draw from the jury box in open court the names of not less than fifty persons to supply the grand jury for such session and petit juries for the first week of such session of the court, or if a grand jury is not needed for the session at least thirty persons, and as many more persons as may be needed for jury service in courts having more than one division for the first week, and after each name is drawn it shall not be returned to the jury box, and there shall be no selection of names, and must seal up the names thus drawn, and retain possession thereof, without disclosing who are drawn until twenty days before the first day of the session of the court for which the jurors are to serve, when he shall forward these names by mail, or express, or hand the same to the clerk of the court who shall thereupon open the package, make a list of the names drawn, showing the day on which the jurors shall appear and in what court they shall serve, and entering opposite every name the occupation of the person, his place of business, and of residence, and issue a venire containing said names and information to the sheriff who shall forthwith summon the persons named thereon to appear and serve as jurors.' (Italics ours.)

Section 38, Title 30, Code of Alabama 1940, provides for the impanelling, organization, and formation of grand juries and petit juries from the names of all jurors in attendance upon court and not excused, by drawing in open court from a hat or box the names of such jurors written on separate slips of paper or cards. Thus the grand and petit juries are formed from the general venire jurors in attendance by virtue of the writ of venire facias juratores, issued pursuant to Section 30, supra.

Construction of Sections 30 and 38, supra, must be made in the light of two other Code sections with which they are respectively interrelated, namely, Sections 278 and 285 of Title 15, Code of Alabama 1940, which are as follows:

'278. No objection to an indictment on any ground going to the formation of the grand jury which found the same can be taken to the indictment, except by plea in abatement to the indictment; and no objection can be taken to an indictment by plea in abatement except upon the ground that the grand jurors who found the indictment were not drawn by the officer designated by law to draw the same; and neither this objection, nor any other, can be taken to the formation of a special grand jury summoned by the direction of the court.'

'285. No objection can be taken to an indictment, by plea in abatement or otherwise, on the ground that any member of the grand jury was not legally qualified, or that the grand jurors were not legally drawn or summoned, or on any other 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; and neither this objection nor any other can be taken to the formation of a special grand jury summoned by the direction of the court.'

It is now clearly established that Section 278, supra, relates to Section 38, Title 30, supra, and preserves the right to plead in abatement the fact that the grand jurors were not drawn from the hat or box as provided in that section, and Section 285, supra, is articulated with and refers to Section 30, Title 30, supra, providing for the creation of the general venire. Doss v. State, 220 Ala. 30, 123 So. 231, 68 A.L.R. 712; Spivey v. State, 172 Ala. 391, 56 So. 232.

While it is specifically provided that the statutory provisions for the selection, drawing summoning, or impanelling of jurors are directory merely, and not mandatory (See Sec. 45, Title 30, Code of Alabama 1940), this general prescription for interpretation cannot be used to nullify specific regulations deemed essential to the established concept of trial by jury. Zininam v. State, 186 Ala. 9, 65 So. 56. Certainly liberality of construction was never intended to conflict with the basic principles of due process. The provisions found in Section 30, Title 30, supra, that the judge of the court 'shall draw from the jury box in open court the names,' and that 'after each name is drawn it shall not be returned to the jury box, and there shall be no selection of names,' tending as they do to preserve precious essentials of the right of trial by jury, must be construed as mandatory.

Since the enactment of Sections 278 and 285, and their progenitors it has been the uniform ruling as to objections to indictments to disallow all defenses, save that resting on...