Wyres v. State

• Citation: 32 Ala.App. 630,29 So.2d 155
• Decision Date: 11 February 1947
• Docket Number: 6 Div. 211.
• Parties: WYRES v. STATE.
• Court: Alabama Court of Appeals

29 So.2d 155

32 Ala.App. 630

WYRES v. STATE.

6 Div. 211.

Alabama Court of Appeals

February 11, 1947

Jas A. McCollum, of Tuscaloosa, for appellant.

Wm. N. McQueen, Atty. Gen., and John O. Harris Asst. Atty. Gen., for the State.

HARWOOD Judge.

This appellant was indicted for murder in the first degree. He was by a jury found guilty of murder in the second degree and his punishment fixed at imprisonment in the State penitentiary for a term of ten years.

In the proceedings below the appellant filed a plea in abatement to the indictment, assigning some twelve grounds in support of the plea and its amendment.

Ground 4, and ground 1 in support of the amended plea, set forth that the grand jury was not drawn in the presence of the circuit clerk, as provided by law, but in the presence of a deputy circuit clerk.

A deputy clerk is the alter ego of the clerk, and has full power to transact all business of the clerk. Section 197(2), Title 13, Code of Alabama 1940.

Ground 3 alleges that the grand jury was not drawn in the presence of the sheriff, as required by law, but in the presence of a deputy sheriff.

In general the acts of the deputy sheriff are the acts of the sheriff. He is the alter ego of the sheriff. Rogers v Carroll, 111 Ala. 610, 20 So. 602; Hereford v. Brentz, 192 Ala. 465, 68 So. 350; Mosely v. Kennedy, 245 Ala. 448, 17 So.2d 536.

Ground 9, and ground 3 of the plea as amended allege that only forty-seven jurors were qualified, sworn and impaneled on September 5, 1944 from which to select a grand jury and petit juries which tried cases during that week.

The above two grounds are defective in that it is not alleged that the fifty jurors required to be drawn by the judge under Section 30 of Title 30, Code of Alabama 1940, were not drawn as required. The fact that only forty-seven were sworn and qualified in no way injured the appellant. Of the number of jurors qualified the judge, under Section 38 of Title 30, Code of Alabama 1940, had to first draw the names of eighteen jurors who were to be impaneled and sworn as grand jurors. It is nowhere alleged that this procedure was not followed in impaneling the grand jury which returned this indictment.

Ground 2 alleges that the jury box containing the names of jurors from which the grand jury was drawn was not kept in a safe in the probate office.

It is not alleged that appellant was in any way injured by the fact that the jury box was not kept in the probate office, or that any irregularity in placing the names or continuing the same in the jury box resulted or was present. Further, in reference to the keeping of the jury box Section 20 of Title 30, Code of Alabama 1940, provides that it '* * * shall be kept in a safe or vault in the office of the probate judge, and if there be none in that office, the jury commission shall deposit it in any safe or vault in the court house to be designated on the minutes of the commission.' For aught appearing in the plea and ground 2 in support thereof, no noncompliance with the above provision is shown.

Grounds 1, 5, 6, and 7 of the plea, and ground 2 of the amended plea are all to the effect that the grand jury which returned this indictment was only the second grand jury impaneled in Tuscaloosa County during the year 1944; that it was impaneled on September 5, 1944, and that the indictment was not returned by it until December 11, 1944, a date after the term or session for which it was impaneled and beyond its legal existence.

Section 72, Title 30, Code of Alabama 1940, is as follows: 'There shall be empaneled in every county having less than fifty thousand population, not less than two grand juries in every year, and when they have completed their labors, in its discretion the court may permit them to take a recess subject to the call of the judge of the circuit court, or chief justice of the supreme court, and may be reassembled at any place where the circuit court of the county is to be held. In all counties having over fifty thousand population, there shall be empaneled not less than four grand juries in every year.'

We judicially know that Tuscaloosa County had a population of over fifty thousand during the year 1944. Appellant's counsel therefore argues that a grand jury in Tuscaloosa County could legally exist for only a quarter of a year. In our opinion this contention is without merit. In the first place, the provisions for the selection, drawing, summoning, or impaneling of jurors are directory merely, and not mandatory. Section 45, Title 30, Code of Alabama 1940. It is our opinion that the provision of Section 72, Title 30, Code of Alabama 1940, to the effect that in counties of over fifty thousand population there shall be impaneled not less than four grand juries a year was merely for the convenience of the citizenry of the more populous counties, and seeks to relieve the individual grand jurors from too great a personal sacrifice growing out of grand jury duty by providing, if needed, for four grand juries a year. If in the discretion of the circuit judge the business before the grand jury had not been of sufficient volume to unduly burden the members, by consuming too much of their time from personal affairs, then due regard for governmental economy and efficiency would dictate the continued use of a legally impaneled grand jury if its legal life had not been terminated by discharge or by operation of law.

Section 114 of Title 13, Code of Alabama 1940, in effect abolished specified terms of our circuit courts by providing that our circuit courts shall be open for the transaction of any and all business, or judicial proceedings of every kind at all times. Prior to 1936 two six months terms per year existed by virtue of statutory enactments. See Gen.Acts 1915, p. 707, Section 6667, Alabama Code of 1923.

Under the doctrine of our Supreme Court, reflecting the common-law rule, the term of a duly impaneled grand jury continues until dissolved by order of the court, and in the absence of such order, until the expiration of the term during which it was impaneled, the expiration of the term automatically ending its life. Whittle v. State, 205 Ala. 639, 89 So. 43; Riley v. State, 209 Ala. 505, 96 So. 599. Once impaneled a grand jury was presumed to continue until discharged in one of the above-mentioned ways. Petty v. State, 224 Ala. 451, 140 So. 585.

Since terms of court as formerly existed have by statute been abolished, it is our opinion that now in this State a grand jury legally impaneled continues its legal existence until dissolved by order of court, and that such was the law at the time of the impaneling of the grand jury whose legal existence is questioned in this case.

While the above reasons going specially to the respective grounds to which they were addressed demonstrate the correctness of the action of the trial judge in sustaining the State's demurrer to the plea in abatement, his ruling in such premises was correct for the additional reason that it is now well established in this State that 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 on the ground that the grand jurors who found the indictment were not drawn by the officer or officers designated by law to draw the same. Sections 278 and 285, Title 15, Code of Alabama 1940; Whitehead v. State, 206 Ala. 288, 90 So. 351; Troup v. State, Ala.App., 26 So.2d 611, certiorari denied Ala., 26 So.2d 622.

The appellant with his wife and two infant children lived in what was formerly a small store building located very close to the public highway in Vance, a small community in Tuscaloosa County.

The evidence for the State was directed toward showing that Carl Hubbard, the deceased, and appellant had been together the morning of the killing for the purpose of trying to repair Hubbard's automobile, and just before the shooting had returned to Vance. Wallace Tingle, the chief witness for the State, testified that he witnessed the shooting from a distance of about 148 feet away. According to Tingle he observed the deceased walking down the highway with a water bucket in his hand. He heard appellant, from a point in the highway in front of his home, call out, 'If you come back up here, I will kill you.' The deceased was at this time about twenty steps down the highway from appellant. When appellant made the above statement the deceased turned to look back at him and appellant shot deceased with a rifle. The bullet struck deceased in the forehead near the left eye, killing him instantly.

According to Tingle the deceased had nothing in his hands other than the bucket.

Several witnesses who viewed deceased's body very shortly after the shooting testified that deceased was lying in the road, the bucket nearby. When some of these witnesses returned for a second view a pint bottle, unstopped, containing a small quantity of moonshine whiskey was observed standing between deceased's legs. The bottle had not been there when they first viewed deceased.

The evidence for the defense was to the effect that appellant and deceased, when they were unable to repair deceased's automobile, had returned to appellant's home. A man named Martin Edmonds, an acquaintance of appellant's, and who was very drunk, had come into the house with the deceased. The appellant had gone outside to chop some wood, and when he re-entered the house he heard his wife protesting to Edmonds because of his conduct toward her. Edmonds continued his harassment of appellant's wife and appellant eventually knocked him down and then 'threw' him out of the house. The...