Oliver v. The State

Oliver v. The State. Indictment for Carrying Concealed Weapons, 1. Statutory provisions as to formation of grand juries. — The special statute approved December 19th, 1876, entitled “An act to secure more effectually competent and well-qualified jurors in the counties of Montgomery, Lowndes, Autauga, Dallas, Perry and Bullock ” (Sess. Acts 1876-7, p. 190), supplants and repeals, in the counties named, “most or all of the provisions of the Code of 1876” relating to the same subject, ‘‘beginning with section 1732, and ending with section 1759.” 2. Objection to indictment, on account of incompetency of grand jurors, — In the completion of a grand jury by adding talesmen, if the order of the court directs the talesmen to be summoned from an improper class of persons, the error is fatal to any indictment found by the grand jury so formed; but, when the order of the court is correct, if an incompetent person is summoned by the sheriff, and is accepted and serves, the irregularity is not available-in defense of an indictment found by the grand jury. Error to the Circuit Court of Lowndes, Tried before the Hon. John Moore. The indictment in this case charged the defendant with carrying a pistol concealed about his person, and was found at the May term of tbe court, 1881. The defendant filed a plea in abatement, averring “ that the grand jury which found and preferred said indictment was not drawn by the persons, and in tbe manner provided and required by law, in this : that John L. Eolmar, who was a member, of said grand jury, and was summoned by the sheriff as a tales juror to complete tbe said grand jury, was not a householder or freeholder in said county of Lowndes for the last twelve months before the organization of said grand jury ; and that said Eolmar did not possess the legal qualifications of a juror, as declared in tbe act of the General Assembly, approved tbe 19 tb December, 1876, entitled ‘An act to secure more effectually competent and well-qualified jurors in the counties of Montgomery, Lowndes, Autauga, Dallas, Perry and Bullock,’ and was duly ascertained by the jury commissioners, appointed under the said act to draw and select jurors for tbe county of Lowndes, to be disqualified to serve as a juror, to-wit, on the first Monday in January, 1881; and he further avers that the name of said John L. Folmar was not on the list of qualified jurors selected by said commissioners, and by them-filed with the probate judge of said county on said first Monday in Januuary, 1881, and was not drawn in the presence of said jury commissioners, nor by them, but was by them, on said day, rejected as a juror; and he jurther avers that said grand jury, when completed, consisted of only fifteen men, including said John L. Folmar. And this he is ready to verify,” &c. The court sustained a demurrer to this plea, and its judgment on the demurrer is now assigned as error. Clopton & Griffin, and John Enochs, for appellant. H. C. Tompkins, Attorney-General, for the State. [MAJORITY — STONE, J.] STONE, J. The act “ to secure more effectually competent and well-qualified jurors in the counties of Montgomery, Lowndes, Autauga, Dallas, Perry and Bullock,” approved December 19th, 1876 (Pamph. Acts, 190), we think must be construed as supplanting, in the counties named, all the provisions in the Code of 1876 relating to the matters provided for in the said statute, and furnishing different rules and methods for the service therein provided for. This covers most or all of the provisions of the Code of 1876, beginning with section 4732, and ending with section 4759. We say it supplants section 4759, because the act of December, 1876, contains no provision corresponding to that section of the Code. The question in the present case, however, does not arise out of the drawing of grand jurors to serve ar a term of the court. The regularity of that service is not questioned. It is in the summoning and selecting of talesmen to complete the grand jury, the irregularity is alleged to have occurred. Under our rulings, section 4759 of the. Code of 1776 does not apply to the summoning and selection of such tales-jurors. Finley v. The State, 61 Ala. 201; Cross v. The State, 63 Ala. 40; Scott v. The State, Ib. 59 ; Couch v. The State, Ib. 163. As to such sapplementary jurors, we have held, that an erroneous direction by the court, as to the class of persons the sheriff, in summoning, should select from, would be fatal to any indictment found by a grand jury thus organized. If, however, the sheriff, without being directed by the court, himself erred in summoning a juror who did not possess the requisite qualifications, and the person thus summoned is accepted and serves, there is no mode of making this irregularity available in defense of an indictment found by a grand jury thus organized. — Brooks’ case, 9 Ala. 9. We have stated above the extent to which the general law is repealed or supplanted by the act approved December 19th, 1876. It does not repeal or supplant section 4889 of the Code of 1876. While it was manifestly the duty of the sheriff, and of the court, in organizing the grand jury, to see that the persons composing' the body should possess the requisite qualifications under said act, yet a failure to do so, in summoning and selecting tales-jurors, can not be made ground of plea or defense under section 4889. The judgment is affirmed.