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 |
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.
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:
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:
In Sandwich v. State, 137 Ala. 85, 87, 34 So. 620, the Supreme Court said:
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 grand...
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