Tucker v. State

• Decision Date: 02 July 1907
• Citation: Tucker v. State, 152 Ala. 1, 44 So. 587 (Ala. 1907)
• Parties: TUCKER v. STATE.
• Court: Alabama Supreme Court

44 So. 587

152 Ala. 1

TUCKER v. STATE.

Supreme Court of Alabama

July 2, 1907

Appeal from Circuit Court, Marion County; C. P. Almon, Judge.

John Tucker was convicted of assault with intent to murder, and he appeals. Reversed and remanded.

The defendant was indicted for an assault with intent to murder and filed several grounds of motion to quash the indictment not necessary to be here set out. Demurrer being sustained to the motion to quash, the defendant filed as pleas in abatement the several grounds of the motion, the second of which is in the following language: "Because the grand jurors who were organized and impaneled and who returned an indictment against the defendant were not drawn in the presence of the officers as designated by law to draw said jury." Issue was taken on this second plea, and demurrers sustained to the other. It seems from the record that the plea in abatement and the plea of not guilty were submitted to the same jury at the same time. The defendant introduced E. A. Williams, who testified that he was one of the jury commissioners of Marion county, and was one of the jury commissioners which drew the grand jury that returned the indictment in this case. Objection was sustained to the following questions propounded to the witness by the defendant: "If you had a jury box, I want to know how you got the name of the jury that found this indictment?" "Did you not write the names on a piece of paper of the persons whom you desired to serve as grand and petit jurors for the term which found the indictment against the defendant, and did not the other two commissioners do the same, each selecting the names of the person who desired to serve as grand jury and petit jury men in their respective districts, and did you not put these names immediately in the box and immediately draw them out and is it not a fact that the box had no other names in there except the names which you selected and put in there at the time of the drawing of this jury?" "State if it is not a fact that you selected them outside of the jury box. Did you not also write the names of the persons whom you wished to be on the jury to put them in the jury box at the time you drew the jury from out the box?" "Is it not a fact that you selected them yourselves from your district, and the other three commissioners?" "Is it not a fact that you did not draw them from the jury box at all?"--and other questions of similar import. These same questions were asked of J. E. Real and P. E. Caudle, and objection sustained to them. The jury returned the general verdict of guilty as charged, and defendant appeals.

NeSmith & Stone, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

TYSON C.J.

The defendant was indicted for an assault with intent to murder which, under the statute, is a felony. At the term at which the indictment was preferred he filed a motion, containing a number of grounds, to quash the indictment. To this motion a demurrer was interposed, which was sustained by the court. Thereupon he filed a number of pleas in abatement. One of these was that "the grand jurors who were organized and impaneled,...