Swain v. State

• Decision Date: 03 June 1913
• Citation: 62 So. 446,8 Ala.App. 26
• Parties: SWAIN v. STATE.
• Court: Alabama Court of Appeals

62 So. 446

8 Ala.App. 26

SWAIN v. STATE.

Court of Appeals of Alabama

June 3, 1913

Rehearing Denied June 19, 1913

Appeal from Law and Equity Court, Walker County; T.L. Sowell, Judge.

John Swain, alias, etc., was convicted of murder, and he appeals. Affirmed.

See also, 60 So. 961.

Acuff & Finch, of Jasper, for appellant.

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

THOMAS J.

The defendant was indicted and convicted of murder. The first error insisted upon is that the trial court erred in overruling a motion to quash the indictment and in overruling demurrers filed thereto; the grounds (16 in all) of this motion and of the demurrers filed after the motion was overruled being exactly the same. We will discuss, however only those grounds urged in brief. The first of these is that the record does not affirmatively show that the grand jurors were drawn in the presence of the officers designated by law.

The minutes of the organization of the court recite expressly, in this particular, that all the jurors "had been regularly drawn according to law"; and, if so, they were certainly drawn "in the presence of the officers designated by law." If in fact they were not, the question would have to be raised by a plea in abatement, and could not be raised as here attempted, either by a motion to quash or a demurrer to the indictment. Spivey v. State, 172 Ala. 393, 56 So. 232; Code, § 7572; Acts 1909, p. 315, § 23.

The next ground of the demurrer and motion that is insisted upon is that the indictment does not show at what term of the court it was found, which ground is predicated upon section 7131 of the Code, providing that "an indictment must contain, in the caption or body thereof, the name of the state, county, court, and term in and at which it is preferred," etc. The caption of an indictment is not the mere marginal statement of the state, county, court, term, etc., usually found at the head of an indictment, but is that entry of record which shows the organization of the court, when and where held, the names of jurors, etc., and which is a part of every indictment. 1 May.Dig. p. 425; Gater v. State, 141 Ala. 10, 37 So. 692; Collins v. State, 3 Ala.App. 68, 58 So. 80; Thornton v. State, 4 Ala.App. 205, 59 So. 234. An examination of this entry, together with the indictment and indorsements thereon, leaves no doubt that the contention of defendant is without merit, and that the indictment was found at the spring term, 1912, of said court. Authorities supra.

The next ground of the motion insisted upon is that the indictment was indorsed "a true bill" and signed "D.M. Hester, Foreman," when the record shows that David Hester was the foreman of the grand jury. The court, after proper proof by the state that D.M. Hester and David Hester was one and the same person, certainly committed no error in overruling the motion.

The person alleged to have been murdered is described in the indictment, as set out in the record, as "John Elmore, alias John Elmore, alias Dutch John"; and it is objected that the indictment is therefore defective because it fails to allege that either of the names mentioned was the person's true name, or that his true name was to the grand jury unknown. Neither of the authorities cited by appellant supports the contention made, but, on the contrary, the following amply sustain the validity of the indictment in this particular: Falkner v. State, 151 Ala. 77, 44 So. 409; Haley v. State, 63 Ala. 91; Jones v. State, 63 Ala. 27; Viberg v. State, 138 Ala. 104, 35 So. 53, 100 Am.St.Rep. 22.

We likewise find no merit in any of the other grounds of the motion to quash the indictment or of the demurrer thereto; but, as they are not urged in brief, we deem them not of sufficient importance to require a discussion by us.

The defendant also moved, upon numerous grounds, to quash the venire served upon him; but only one of these grounds is here insisted upon, and that is that the paper served on defendant by the sheriff, purporting to be a copy of the indictment, was not a correct copy of the indictment. It is sufficient to say, in this connection, without further consideration, that the sheriff's return found in the record here affirmatively states he served a copy of the indictment on defendant one entire day before the day set for the trial of the case. The return of the sheriff is conclusive, until impeached, and there is not a line of proof in the record anywhere from any source tending in any way to sustain the ground of the motion that the copy so served on defendant was not a correct copy of the indictment.

It is likewise insisted that a correct copy of the jury lists was not served on defendant. The sheriff's return recites to the contrary, and we find nothing in the record to impeach it. The defendant was arraigned on April 15th, and the trial was set for April 23d, while the defendant was served with a copy of the jury lists and of the indictment on April 19th. It is here urged that this was not a service "forthwith" as required by the jury law. Acts Sp.Sess.1909, p. 319, § 32. It was a service four days before the trial, and fully met, we think, the spirit and purpose of the statute, in that it gave the defendant and his counsel abundant time and ample opportunity, before the trial, to fully examine the indictment and jury lists, prepare his defense, and determine on a choice of jurors. Welch v. State, 1 Ala.App. 144, 56 So. 11; Haisten v. State, 5 Ala.App. 56, 59 So. 361.

The solicitor asked one of the state's witnesses the following question: "If the man that was shot had his hand in his righthand hip pocket all the time he followed defendant, could you have seen him?" Defendant objected to the question, which objection was overruled. Assuming that the court erred in this ruling, because the question called for a conclusion of the witness (Hammond v. State, 147 Ala. 89, 41 So. 761), there was certainly no injury since the witness' answer was not only entirely unobjectionable,...