Thompson v. State, 5 Div. 832.

• Decision Date: 12 May 1931
• Docket Number: 5 Div. 832.
• Citation: 134 So. 679,24 Ala.App. 300
• Parties: THOMPSON v. STATE.
• Court: Alabama Court of Appeals

134 So. 679

24 Ala.App. 300

THOMPSON v. STATE.

5 Div. 832.

Court of Appeals of Alabama

May 12, 1931

Appeal from Circuit Court, Macon County; S. L. Brewer, Judge.

Ed. L Thompson was convicted of robbery, and he appeals.

Reversed and cause remanded.

See also, 132 So. 865.

Wm. M. Russell, Richard H. Powell, Jr., and R. H. Powell, all of Tuskegee, for appellant.

Thos. E. Knight, Jr., Atty. Gen., and Thos. S. Lawson, Asst. Atty. Gen., for the State.

BRICKEN, P.J.

The indictment in this case charged this appellant with the offense of robbery. He was tried and convicted as charged his punishment being fixed by the jury at imprisonment in the penitentiary for ten years.

Upon arraignment, but before pleading to the indictment, defendant filed a written motion to quash the indictment upon the grounds that he (defendant) was subp naed by the grand jury to appear before them and give evidence in the case. The specific grounds of the motion are as follows:

"(1) Defendant says that before this indictment was returned he was carried before this same Grand Jury and compelled to testify against himself, without his consent, and that he was thus deprived of his Constitutional rights in connection with the matters set out in said indictment.

"(2) Defendant says that on a day prior to the time that this indictment was found by the Grand Jury and returned to the Court, in fact several days prior to the return of said indictment, and before the Grand Jury had proceeded to investigate the case as charged in the indictment, defendant was compelled to testify against himself before the Grand Jury in relation to and in connection with the matters charged in said indictment, and defendant says that he was not advised by the Solicitor in charge of said Grand Jury of his constitutional rights, and that he was not cautioned before testifying that the evidence would be used against him, and defendant says that at the time he was so compelled to testify against himself the Solicitor in charge of said Grand Jury and the same Grand Jury well knew that the defendant was charged with, and suspected of the crime named in the indictment. And defendant says that he was so compelled to testify against himself, the same Grand Jury returned this indictment against him.

"(3) Defendant says that on to-wit, the 13th day of October, 1930, while he was imprisoned in the County jail of Macon County, Alabama, on a charge of robbery, or grand larceny against the person and property of one Takeo Oyama, being the person referred to in the indictment in this cause, he was carried by the Sheriff of Macon County before the Grand Jury then in session, which said Grand Jury at said time was investigating the charge against him as set out in said indictment. And defendant says that he was compelled to testify before said Grand Jury in relation to the matters referred to and named in the indictment with which he was then charged or suspected, and for which he had been imprisoned and was then being held in jail. Defendant says that he asked for his Attorney who had been employed to represent him, and was not permitted to consult with his attorney, but was carried before the Grand Jury without benefit of counsel, and without being advised of his constitutional right to claim exemption under such circumstances from being forced to testify against himself. And defendant says that he was so compelled to testify against himself, and that after such testimony had been given, and on a later day, the same Grand Jury returned this indictment against him, charging him with an offense with which he was charged and suspected of at the time he was carried before the Grand Jury, and about which he was examined over his objection and without benefit of counsel.

"(4) Defendant says that the Grand Jury that returned a true Bill in this case was impaneled and organized as a Grand Jury for Macon County, Alabama, at October Term of Court on October 13th, 1930. That they proceeded to investigate charges and the complaints brought before them, and began the investigation of a charge of robbery or Grand Larceny as set out in the present indictment in this cause against the person and property against one Takeo Oyama; That defendant at that time was imprisoned in the County jail on a complaint charging him with said offense as herein referred to and as then investigated by said Grand Jury. And defendant says that while so imprisoned on said charge, and while said Grand Jury was investigating said offense, defendant was carried before said Grand Jury and compelled to testify regarding the matters referred to in this indictment and regarding the charge on which defendant had been arrested and put in jail. ***

"And said defendant says that said investigation of the charge contained in the present indictment was made, and the indictment in this case was returned, several days after defendant had been carried before said Grand Jury and compelled to testify against himself about and concerning the matters complained of in said indictment, the defendant at said time being under charge and in prison on account of said offense."

Upon the hearing of the foregoing motion, there was no dispute about the fact that, while the defendant was confined as a prisoner in the county jail, he was subp naed to appear before the grand jury to give evidence in the case wherein he was charged with the offense of robbery, that the sheriff carried the defendant before the grand jury, and that he was there sworn as a witness and gave evidence touching the presentment wherein he was charged as aforesaid, and that afterwards the grand jury returned into open court the indictment in question upon which he was arraigned. There was, however, some conflict in the evidence as to what transpired while the defendant was before the grand jury.

In this connection appellant insists, where defendant is required to attend the grand jury and give evidence touching the crime charged against him, an indictment found against him by such grand jury will be quashed because of the invasion of defendant's constitutional rights protecting him from being compelled to give evidence against himself.

The Constitution expressly provides in all criminal prosecutions the accused shall not be compelled to give evidence against himself. Article 1, § 6, Const. 1901. This strict inhibition of the fundamental law should never be disregarded; its humane provision is manifest, and every person charged with the enforcement of law, in any capacity, should, with meticulous care, refrain from any official act tending to render nugatory and meaningless this mandatory provision.

This particular provision of the Constitution is self-operative; but, notwithstanding this, there are numerous statutes in this state which expressly prohibit the finding of an indictment where the accused has been required to appear before the grand jury and give evidence touching the offense with which he is charged. Sections 4244, 4702, 4638, 4635, of the Code 1923. Numerous other statutes of like import could be cited. Burt v. State, 20 Ala. App. 296, 101 So. 768; Ex parte Burt, 212 Ala. 96, 101 So. 770; Culbreath v. State, 22 Ala. App. 143, 113 So. 465. In the Culbreath Case, supra, this court said: "The motion to quash was the proper remedy. *** The authorities of other states are unanimous in holding that, where a defendant has been required to attend before a grand jury and has made a statement in answer to their interrogatories touching the crime charged against him, even after being cautioned by the prosecuting attorney as to answering, the indictment found against said defendant by such grand jury will be quashed, because of an invasion of defendant's constitutional rights which protects him from being compelled to give evidence against himself."

In Sandwich v. State, 137 Ala. 85, 87, 34 So. 620, the Supreme Court said: "It is wholly immaterial and unimportant that there was other evidence adduced before the grand jury, which was sufficient, without regard to that given by the defendant, to authorize the finding of the indictment. The fact remained that the defendant was indicted after he had been required as a witness to answer generally as to any violation of the laws against gaming within his knowledge, and had so answered, thereby entitling himself to protection from prosecution as to any such offense so testified to by him."

Without prolonging this discussion upon the point of decision involved, we are of the opinion, in line with authorities cited, that the motion to quash the indictment should have been sustained.

Appellant next insists the court erred in not quashing the venire because of a variance between the copy of the indictment served upon him, by order of the court, and the indictment returned by the grand jury upon which he was put to trial. As the law requires, this being a capital case, the court after drawing the special jury, ordered the sheriff to serve on the defendant forthwith a copy of the indictment in this case together with a list of all names of the regular jurors drawn and summoned and also the names of the twenty special jurors drawn for this case. Appellant complains that the indictment served on him and upon which he was put on trial contained only one count, while the indictment as returned by the grand jury contained two counts; hence the variance. We do not accord to appellant's insistence in this connection. The record discloses that the original indictment preferred by the...