White v. State

• Decision Date: 07 February 1918
• Docket Number: 7 Div. 875
• Citation: 201 Ala. 387,78 So. 449
• Parties: WHITE v. STATE.
• Court: Alabama Supreme Court

78 So. 449

201 Ala. 387

WHITE v. STATE.

7 Div. 875

Supreme Court of Alabama

February 7, 1918

Rehearing Denied April 4, 1918

Appeal from Circuit Court, Shelby County; Lum Duke, Judge.

Jim White was convicted of murder, and he appeals. Affirmed.

Saxon &amp Acuff, of Columbiana, for appellant.

F. Loyd Tate, Atty. Gen., and Emmett S. Thigpen, Asst. Atty. Gen for the State.

GARDNER J.

The act creating the county court of Shelby county (Acts Sp.Sess.1909, p. 45), provides for two regular terms in each year for the holding of said court: The first beginning on the 1st day of January, and continuing until the 1st day of July in each year; and the second term beginning on the 1st day of July, and continuing until the 1st day of January of each year--thus, in practical effect, creating a continuous term. The act also provides for adjournment of court from time to time as it may seem proper to the presiding judge and also for the convening of a special grand jury as occasion may demand.

The indictment in the instant case shows on its face to have been found at the July term, 1915, of said court. The trial of the cause was had in the circuit court of Shelby county; the county court of Shelby having been abolished under the general laws to that effect. The defendant filed a number of pleas in abatement, some of which in general terms merely stated, as if by conclusion, that the indictment was found by the grand jury at a time not authorized by law for the sitting of said grand jury; and that the term of the grand jury that found the indictment was not held at the time provided by law for the holding of same, but without giving further information with reference to the general statements in said pleas. Clearly, these pleas, in the use of such general language, were subject to demurrer, and there was no error in the court's sustaining the demurrer thereto.

In pleas 12 and 13, however, the defendant specifies more particularly what was evidently intended to be covered by the very general averment above noted in regard to the other pleas. This was to the effect that the court entered an order on August 9, 1915, at the regular August term of the grand jury, adjourning to the fourth Monday in August, 1915; and at the time of the making of this order there was no grand jury organized, and summoned for said court for its August term--that said order was unauthorized by law; and further that the grand jury finding this indictment was organized on the fourth Monday in August by reason of said order.

A reading of the special act (Special Session 1909), establishing the county court of Shelby, above cited, in connection with section 23 of the Jury Law (Special Session Acts 1909, p. 305), clearly demonstrate that these pleas were without merit, and the demurrer thereto was properly sustained. Indeed, it is not insisted by counsel for appellant that these pleas present any matter of merit. But the argument is that the assignments of demurrer by the state were not sufficient to justify the ruling of the court in sustaining them. We are of the opinion, however, in the light of our statutes and after reviewing the five assignments of demurrer, that they were sufficient to justify this action of the court.

The defendant was served with a venire consisting of 60 names composed of 16 special jurors drawn for his trial, together with 45 regular jurors drawn for the trial of causes during that week of court. The venire served upon the defendant appears from this record to have been in accordance with the statutes, as construed by the decisions of this court. The cause was called for trial on February 28, 1917, in the circuit court of Shelby county, when it was ascertained that Robert Black, one of the special jurors on the venire summoned to try the defendant, was not present; and the court upon inquiry as to the qualification of other jurors, composing the list on the venire, excused a number of them for reasons which the court deemed proper, some of which are set out in the record, so that the number from which the jury was to be selected was reduced to 49. The defendant does not appear to have interposed any objections or reserved any exceptions to the action of the court in excusing any of the jurors as above...