Spivey v. State

Decision Date29 June 1911
Citation172 Ala. 391,56 So. 232
PartiesSPIVEY ET AL. v. STATE.
CourtAlabama Supreme Court

Appeal from Circuit Court, Pike County; H. A. Pearce, Judge.

Robert Spivey and others were convicted of murder, and they appeal. Reversed and remanded.

Simpson McClellan, and Somerville, JJ., dissenting.

Foster Samford & Carroll, Ball & Samford, and W. L. Parks, for appellants.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

MAYFIELD J.

Appellants were indicted and convicted for the murder of Lee Stephens, by shooting him with a pistol, and sentenced to the penitentiary for a term of 30 years, from which judgment they prosecute this appeal.

To the indictment the defendants pleaded, in abatement, that the grand jury which found and returned the indictment was not drawn by the officer designated by law for that purpose, but was drawn by the judge of another court of Pike county, and prior to the 20 days before the beginning of the term of the circuit court which found the indictment, and that the grand jury should have been drawn by the judge of the circuit court, instead of by the judge of such other court.

If the facts averred in these pleas in abatement are true (and on demurrer they must be so treated), the grand jury that found and returned this indictment was not drawn "in the presence of the officers designated by law," and its organization was therefore a ground of objection which could be taken by plea in abatement, under an express provision of section 7572 of the Code of 1907.

The solicitor and the trial court, in interposing and sustaining the demurrer to these pleas in abatement, evidently acted upon the theory that the pleas were within the operation of section 29 of the jury law, found in the Acts of 1909 (page 317). In this there was error. This section of the new jury law was evidently intended to take the place of section 7256 of the Code, which is a part of the jury law, and was not intended to repeal or take the place of section 7572, pertaining, not to the jury law, but to the pleading and practice in criminal cases. This section (29) of the act, and its corresponding section (7256) of the Code, constituted parts of the jury law as distinguished from those parts of the law pertaining to pleading and practice, of which section 7572 forms a part. The former provides for and limits the objections that can be taken to any venire, or venire facias, of jurors, but does not attempt to provide for, nor to regulate or limit, the objections that can be taken to an indictment, though the ground of objections to the indictment may pertain to the grand jury which returned it.

It is true that in section 29 of the present jury law the objection to venires is not limited to those of petit juries, as it was in section 7256 of the Code, and it may therefore be said to extend to a venire or a venire facias for grand, as well as for petit, juries; yet there is no attempt, in the section as now amended, to extend or to limit the objections that can be taken or interposed to an indictment. The former statute (section 7256 of the Code), corresponding to it, applied to grand, as well as petit, juries, for selecting, drawing, and summoning; and likewise provided "that juries selected, whether at an early or a later day, must be deemed legal and possessing the power to perform all the duties belonging to grand and petit juries respectively."

This statute (section 7256 of the Code) has applied--at least since the Code of 1896--to grand and petit juries, and has all the while provided that the law pertaining to their selection, drawing, or summoning shall be directory, and not mandatory. Consequently this section of the jury law does not now attempt, and has never attempted, to limit the objections that may be taken to indictments; but, on the other hand, section 7572 of the Code now answers, and has always served that purpose. To illustrate: The jury law has for a long time provided that no objection can be taken to any venire, except for fraud in the drawing or summoning; yet this objection could not be taken to an indictment, if the grand jury was drawn in the presence of and by the officers designated by law; that is, this question could not be inquired into on a plea in abatement, nor on motion to quash an indictment, if the grand jury was drawn in the presence of, and by the officers designated by law, for the reason that section 7572 of the Code was intended to provide for the objections which could be taken to an indictment; while the other sections of the jury law were intended to provide for and limit the objections which could be taken to a venire.

In the early history of this state, if the grand jury was not summoned as required by law, an objection on such ground was fatal to the indictment, and likewise if one of the number was not a qualified juror. There was then no presumption in favor of the regularity or validity of the grand jury, nor of the competency of any grand juror. All these questions could then be put in issue by a plea in abatement, and the burden of proving it rested upon the state, and not upon the defendant. State v. Williams, 5 Port. 130; State v. Higon, 7 Port. 167. But statutes were subsequently enacted which corresponded to section 7572 of the Code, and which were its progenitors, and limited the objections to indictments as to the grand jury, or grand jurors, finding and returning the indictment, to the one, that they were not drawn in the presence of the officers designated by law. Boulo v. State, 51 Ala. 18. This was the only objection that could be taken to an indictment by a plea in abatement or a motion to quash. It has, however, always been a valid objection to an indictment, on motion in arrest of judgment, that the record affirmatively shows

an error committed by the court in the organization of the grand jury, which is fatal to a judgment of conviction.

In case the error is apparent of record, and is fatal, and goes to the organization of the grand jury which found and returned the bill, the objection is availing on motion in arrest of judgment, or by motion to quash; otherwise by plea in abatement. Ramsey v. State, 113 Ala. 49, 21 So. 209; Peters v. State, 98 Ala. 38, 13 So. 334.

These two provisions--one applying to the jury law, and the other to indictments--have been often pointed out by this court.

The earlier cases were reviewed by Justice Haralson, in Linehan's Case, 113 Ala. 79, 21 So. 500, in which he says: "In the last case cited % ADMurphy v. State, 86 Ala. 46, 5 So. 432], it was said by Stone, C.J., speaking for the court: 'We have several times held that the later statutes regulating the drawing and impaneling of juries have not repealed section 4445, Code of 1886; section 4889, Code of 1876.' In that case the objections to the organization of the grand jury were substantially the same as these here urged, by plea in abatement, to the proper and legal organization of the grand jury in this case, and the court held that under the provisions of said section 4445 of the Code, which were still in force, the court did not err in overruling the motion to quash the venire." The provisions of the Code referred to in the passage quoted correspond to those now under consideration.

It was also said in Linehan's Case that the uniform ruling as to objections to indictments had been to disallow all defenses save the one which rests on irregularity in drawing and impaneling grand juries, and that is the statutory ground that they were not drawn in the presence of the officers designated by law; but it was added that there was an additional exception, in that, if there appeared of record an order of the court, or some action of the presiding judge, relating to the organization or to the action of the grand jury, and that order or action was without warrant...

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  • Clark v. Container Corp. of America, Inc.
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    ...if not expressly, fixed by the Constitution.' Proffatt on Jury Trial, § 106; Sedgewick on Stat. & Const.Law, p. 486; Spivey v. State, 172 Ala. 391, 397, 56 South. 232 [1911]; 16 R.C.L. Judge Walter B. Jones, Trial by Jury in Alabama, 8 Ala.L.Rev. at 277 (1956), wrote: "The fundamental requi......
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    ...but not so as to impair any of the fundamental requisites of a jury. Baader v. State, 201 Ala. 76, 77 So. 370; Spivey v. State, 172 Ala. 391, 397, 56 So. 232; Sedgwick on Stat. & Const.Law, p. 486; Proffatt on Trial, § 106. This right and its exercise by a defendant and its denial by the co......
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    .... . ." Sections 8630 and 8637 are found in the present Code as Title 15, § 278 and Title 30, § 46, respectively. In Spivey v. State, 172 Ala. 391, 56 So. 232 (1911), the Supreme Court of Alabama found that where the record affirmatively shows an error was committed by the trial court in the......
  • Doss v. State
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    ...James Case, or the rule of the later cases treating the facts averred in the plea as true, as we must do on demurrer (Spivey et al. v. State, 172 Ala. 391, 56 So. 232) we are of opinion that the court erred in sustaining demurrer, and in this respect the Court of Appeals has ruled correctly......
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