Thornton v. State

• Decision Date: 06 February 1912
• Parties: THORNTON v. STATE.
• Court: Alabama Court of Appeals

59 So. 234

4 Ala.App. 205

THORNTON v. STATE.

Court of Appeals of Alabama

February 6, 1912

Rehearing Denied May 28, 1912.

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

Howard Thornton was convicted of a criminal offense, and he appeals. Affirmed.

M. A Owen, of Elba, and W. W. Sanders, of Enterprise, for appellant.

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

WALKER, P.J.

The indictment in this case was found by a grand jury organized at a term of the circuit court of Coffee county held at Elba under the terms of the "act to provide for holding terms of the circuit court of Coffee county twice each year at both Elba and Enterprise in said county," etc. Acts Special Session 1909, p. 427. By motion to quash, and also by plea in abatement, the defendant suggested as an objection to the indictment that the jury box from which the names of the persons were drawn who were impaneled into a grand jury was kept in the office of the judge of probate of the county, and not by the clerk of the court, as directed by the provision of section 25 of the jury law (Acts Special Session 1909, pp 305, 316), applicable in such a case. This objection could not be sustained without disregarding the provision of section 23 of the jury law (Id. p. 315), "that 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." The court did not err in sustaining the demurrer to the plea in abatement. The ruling made in the case of Spivey v. State (Sup.) 56 So. 232, does not stand in the way of this conclusion. It was held that the indictment in that case was subject to objection on the ground that the grand jurors who found it were not drawn by the officer designated by law to draw them.

The record does not disclose any deficiency in the caption of the indictment, whether that term is used to describe a part of the indictment itself (Code, § 7131), or in the technical sense in which it is properly employed as descriptive of "that entry of record showing when and where the court was held, who presided as judge, the venire for the grand jury, and who...