Trammell v. State
| Decision Date | 06 June 1907 |
| Citation | 44 So. 201,151 Ala. 18 |
| Parties | TRAMMELL v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Tallapoosa County; A. H. Alston, Judge.
Hugh Trammell was convicted of murder in the second degree, and he appeals. Reversed and remanded.
Lackey & Bridges, James W. Strother, and Thomas L. Bulger, for appellant.
Alexander M. Garber, Atty. Gen., for the State.
It affirmatively appears of record that the grand jury by which the indictment was found and returned in this case was illegally constituted. The original venire consisted of 18 persons, all of whom appeared and were ascertained by the court to possess the necessary qualifications, and all were thereupon duly and legally sworn in as grand jurors. Subsequently 3 of said grand jurors were excused by the court, which left 15 of the original venire. With the 15 remaining--the minimum number under the statute--it was still a legally constituted grand jury. The court, however, after having excused the 3, and while 15 yet remained, caused 4 other persons to be called and sworn as grand jurors and added to this number. This was without authority of law, and rendered the grand jury so constituted an illegal body, and consequently the indictment returned by it, and upon which the defendant was tried, was a nullity. Section 5023, Cr. Code 1896; Berry v. State, 63 Ala. 126; Peters v. State, 98 Ala. 38, 13 So. 334.
The objection is available on appeal, although not raised on the trial in the circuit court. Finley v. State, 61 Ala. 201; Hall v. State, 134 Ala. 90, 32 So. 750. Other questions presented need not now be considered, as they may not arise on another trial.
For the error pointed out, the judgment must be reversed, and the cause remanded. The defendant will be held to answer a new indictment, and until discharged according to law.
Reversed and remanded.
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State v. Kusel
...to act because not legally drawn or summoned. (Newman v. State, 14 Wis. 393.) Counsel for defendant have cited us to Trammell v. State, 151 Ala. 18, 44 So. 201, we find it stated in Finley v. State, 61 Ala. 201 that there is no statute in that state applicable to criminal proceedings, which......
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Fannin v. State
...sustain this contention we are cited the cases of Finley v. State, 61 Ala. 201, Hall v. State, 134 Ala. 90, 32 So. 750, and Trammell v. State, 151 Ala. 18, 44 So. 201. At time these several decisions were rendered the rule then existing, as construed in the authorities, supra, did allow an ......