Wimbush v. State
| Decision Date | 26 January 1939 |
| Docket Number | 6 Div. 376. |
| Citation | 237 Ala. 153,186 So. 145 |
| Parties | WIMBUSH v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Jefferson County; Leigh M. Clark, Judge.
Edward Wimbush was convicted of murder in the first degree, and he appeals.
Affirmed.
James H. Duncan, of Birmingham, for appellant.
A. A Carmichael, Atty. Gen., and R. L. Farnell, Asst. Atty. Gen for the State.
The defendant, appellant here, was indicted and tried for, and convicted of the offense of murder in the first degree; and his punishment was fixed by the trial jury at death.
Upon this verdict of the jury, the Court duly adjudged the defendant guilty of murder in the first degree, and sentenced him to death by electrocution.
There is no bill of exceptions in the record, but in the record proper we find that three motions in writing were made by the defendant prior to the selection of the trial jury. These motions were, each in turn, overruled by the Court. By force of Section 9459 of the Code, the three motions, and the rulings thereon, on this appeal, become a part of the record proper. The record, therefore, presents for review here the propriety of the Court's ruling upon each of said motions. To this end, it was not necessary that the record should show that exceptions were reserved in the lower court to the rulings on said motions. Lusk et al. v. Champion Register Co., 201 Ala. 596, 79 So. 16. And this Court has specifically held that the overruling by the Court of a motion to quash venire and to continue is reviewable on appeal, though the motion was not excepted to, and was not set out in the bill of exceptions. Stover v. State, 204 Ala. 311, 85 So. 393.
The record before us shows that the appellant was indicted by a grand jury in the Circuit Court of Jefferson County on April 8th, 1938; that on May 14th, 1938, the defendant was duly arraigned on this indictment, and in answer thereto he pleaded not guilty. The case was then set for trial on May 23rd, 1938. At his arraignment, the defendant was attended by his attorney.
When the case was called for trial, the defendant moved the Court to re-arraign him. It does not appear that this motion was in writing, nor does it appear upon what grounds it was predicated. The Court overruled the motion, and the judgment recites that the defendant "duly and legally" excepted. Inasmuch as the motion was not in writing, it did not become a part of the record proper, reviewable on this appeal as such, and inasmuch as there is no bill of exceptions, we are without power to review this action of the Court. Code, § 9459.
The defendant then filed his motion in writing to quash the indictment upon a number of grounds, in the main, challenging the manner of selecting jurors in Jefferson County by the Jury Commission.
The Court, on motion of the solicitor, struck the defendant's said motion to quash. The motion to strike was based upon the grounds that the motion to quash came too late, that is after the due arraignment of the defendant, and his plea of not guilty; and also: "(5) For that said motion to quash, or plea in abatement, fails to aver or show any fraud on the part of the Jury Commission in supplying or filling the jury box with names of competent persons to serve on juries in Jefferson County, Alabama; (6) For that said alleged motion to quash, or plea in abatement, fails to allege that there was any fraud on the part of those charged with the duty of drawing and summoning the jurors for the trial of the defendant in this cause; (7) For that it is not shown or alleged in said plea in abatement, or motion to quash, that the grand jurors who found the indictment were not drawn by the officer designated by law to draw the same."
Section 8630 of the Code provides:
"Objections to indictments; how taken.--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; and neither this objection, nor any other, can be taken to the formation of a special grand jury summoned by the direction of the court."
Section 8631 of the Code provides:
"Plea in abatement; when filed.--Any plea in abatement to an indictment must be filed at the first session at which the indictment was found, if the accused has been arrested, or if the accused has not been arrested, such plea in abatement must be filed at the first session at which it is practicable after the defendant has been arrested and in all cases such plea in abatement must be filed before the plea to the merits."
So then, the defendant's only way to object to the...
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Burns v. State
...Zininam v. State, 186 Ala. 9, 65 So. 56; Richardson v. State, 191 Ala. 21, 68 So. 57; Garner v. State, 206 Ala. 56, 89 So. 69; Wimbush v. State, supra. examination of the record clearly shows that the procedure followed in summoning and impaneling the jury is the procedure provided solely f......
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Payne v. State
...this action of the trial court. Whittle v. State, 205 Ala. 639, 89 So. 43; Whitehead v. State, 206 Ala. 288, 90 So. 351; Wimbush v. State, 237 Ala. 153, 186 So. 145. See Owen v. State, 255 Ala. 354, 51 So.2d The trial court did not err in refusing to quash the venire of jurors drawn and sum......
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Holloway v. State
...the merits. Unless done a waiver is imposed. Title 15, Sec. 279, Code 1940; Whitehead v. State, 206 Ala. 288, 90 So. 351; Wimbush v. State, 237 Ala. 153, 186 So. 145. The same rule applies to the time of filing demurrers to the indictment. Underwood v. State, 248 Ala. 308, 27 So.2d It follo......
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Tiner v. State
....... The sufficiency of the averments of a motion to quash the indictment and a motion to quash the venire on the ground of fraud in selecting or drawing the grand jury and petit jury was before this court in Wimbush v. State, 237 Ala. 153, 186 So. 145. The averments of the motions are not set out in the opinion. In the original record on that appeal, it appears that both motions in that case contained, among others, the following statement of supporting grounds: . '3. For that the jurors, who have been ......