Whittle v. State, 3 Div. 462

• Court: Alabama Supreme Court
• Writing for the Court: THOMAS, J.
• Citation: 205 Ala. 639,89 So. 43
• Parties: WHITTLE v. STATE.
• Docket Number: 3 Div. 462
• Decision Date: 27 January 1921

89 So. 43

205 Ala. 639

WHITTLE
v.
STATE.

3 Div. 462

Supreme Court of Alabama

January 27, 1921

Rehearing Denied May 5, 1921

Appeal from Circuit Court, Conecuh County; John B. Lee, Judge.

Dan Whittle was convicted of murder in the first degree, and he appeals. Affirmed. [89 So. 45]

Robert H. Jones and L.B. Chapman, both of Evergreen, and Emmet S. Thigpen, of Andalusia, for appellant.

J.Q. Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

THOMAS, J.

By the verdict of the jury defendant was found guilty of murder in the first degree and the death penalty imposed. Defendant was jointly indicted with another, and there was a severance as provided by law. Dan Charley v. State, 87 So. 177.

On first arraignment, May 18, 1920, the order was for a venire to consist of 60 jurors (composed of the regular jurors drawn for the week beginning May 25th and 30 special jurors that were then drawn by the judge in open court from the jury box), and an order was issued commanding the sheriff to summon all persons constituting the venire from which the jury to try this defendant is to be selected to appear in open court, and it was ordered that a list of all jurors constituting the venire and a copy of the indictment be forthwith served on the defendant, "to appear in open court on the 25th day of May, 1920, the day set for trial of" the capital offense for which defendant had been indicted. Defendant's motion (May 25, 1920) to quash the venire, which assigned the ground, among others, that "the court originally drew from the jury box the names of 28 persons to serve as regular jurors for the second week of this special term of the circuit court in the manner required by law, instead of 30 jurors, the number required by law to be drawn, and later returned to the office of the circuit clerk of Conecuh county, and in the absence of the defendant and the defendant's counsel drew two additional names from the jury box in order to make the number required by law," was sustained by the court and special venire quashed.

The minute entry recites that after the venire was quashed on May 25, by agreement between the solicitor prosecuting for the state and the attorney for the defendant, in open court the trial of the case was continued until May 28, 1920. Defendant was then arraigned a second time on the indictment charging him with murder in the first degree and pleaded "not guilty." The court made a second order fixing the venire to try the defendant in this case to consist "of 72 persons," commanded the sheriff to "summon 72 jurors, including those drawn for the regular jury for the week set for the trial of this case for a venire in this case, and thereupon in open court and in the presence of the defendant and his attorney the court drew from the jury box *** 42 names, making with the 30 jurors drawn for the week in which this cause is set for trial 72 jurors for the venire from which this case shall be selected," and issued an order directing the sheriff to "summon all persons constituting the venire from which the jury to try this case is to be selected to appear in open court on the 28th day of May, 1920, the day set for the trial of this cause," and further ordered "that a list of all the jurors constituting the venire in this cause, including those for the week in which the trial of this case is set and those this day drawn as provided by law, together with a copy of the indictment, be forthwith served on the defendant."

On the day before entering upon the trial permission of the court was sought by defendant to withdraw his plea of "not guilty" theretofore interposed, that he might file a motion to quash the indictment against him, and which was denied by the court. Having pleaded "not guilty" to the indictment on his arraignment, without permission of the court, defendant may not withdraw his plea for the purpose of making a motion to quash the indictment. The construction placed upon the statute is that, as a general rule, it is within the sound discretion of the court to grant or refuse this permission. Sections 7159, 7567, Code 1907; State v. Williams, 3 Stew. 454; Hubbard v. State, 72 Ala. 164; Nixon v. State, 68 Ala. 535; White v. State, 74 Ala. 31; Bryant v. State, 79 Ala. 282; Smith v. State, 142 Ala. 14, 39 So. 329; Jones v. State, 181 Ala. 63, 76, 61 So. 434.

Moreover, a grand jury once regularly impaneled is presumed to continue until dissolved by operation of law at the expiration of the term at which it is impaneled, or by an order of the court. There was no error in overruling the motion to quash [89 So. 46] the indictment returned by the grand jury reconvened by the court and which had not been dissolved by expiration of the term or by order of the court. Caldwell v. State, 203 Ala. 412, 84 So. 272.

The order fixing the day of defendant's trial was not required to be embraced in the record, there being no question "raised before the trial court," as to the sufficiency of such order fixing the date of his trial. Upon appeal it is "presumed to have been regular." Acts 1915, pp. 708, 709, amending section 6256 of Code 1907; Hardley v. State, 202 Ala. 24, 79 So. 362; Clayton v. State, 78 So. 462; Anderson v. State, 204 Ala. 476, 85 So. 789; Walker v. State, 204 Ala. 474, 85 So. 787; McPherson v. State, 198 Ala. 5, 73 So. 387. However, in the order of May 18, 1920, on defendant's first arraignment, we find the recital that it was "ordered and directed by the court that an order be issued to the sheriff commanding him to summon all persons constituting the venire from which the jury to try this case to be selected to appear in open court on the 25th day of May, 1920, the day set for trial of this cause." When referred to or considered with the orders of the court that day made in said cause, and the several orders relating to his arraignment and trial for murder in the first degree, no error is shown to have intervened in setting the date of defendant's trial on indictment for murder. After the first venire was quashed on said former date, the minute entry of May 25th recited the resetting of the day of defendant's trial and continuance "for Friday, May 28, 1920, at 9:30 o'clock. Accordingly the defendant was rearraigned and the cause was continued and reset for Friday, May 28, 1920." And the minute entry further recited that--

"It was agreed by L.B. Chapman, representing the defendant, and G.O. Dickey, the state solicitor, that all motions, orders, and decrees filed in the Dan Whittle case be considered filed, and that the

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