41 So. 172 | Ala. | 1906
The indictment upon which this defendant was conAucted was preferred by a grand jury organized at an adjourned term of the court, after discharge of the former grand jury which Avas organized at the previous session of the same term. The only authority for organizing a second grand jury at the same term of the court (and an adjourned term is but a prolongation of the regular term) is conferred by section 5000 of the code of 1896, AAdiich is as folloAvs: “When any indictabloffense is committed during the session of the court and after the grand jury has been discharged, the court may in its discretion, cause an order to be entered on the minutes commanding the sheriff fortlnvith to summon eighteen persons possessing the requisite qualifications of grand jurors,” etc. The order making provision for the grand jury, entered on the day of the convening of the adjourned term, to-wit, July 17, 1905, is in this language: “It being made knoAAoi to the court that since its adjournment, and since the discharge of the regular grand jury summoned for the term of the court, numerous indictable offenses and homicides had been committed Avithin the county, and parties charged with said offenses are now confined in the jail of,the county,-and that in the opinion of the presiding judge the public good requires that a grand jury be organized for the purpose of investigating the alleged indictable offenses and homicides, it was (is) ordered that the sheriff of the county forthwith summon eighteen persons from the qualified citizens of said county, possessing the requisite
It is entirely clear from this language that the order was not made under the section above quoted, but was made under § 5001 of the code. — O’Brien v. State, 91 Ala. 16, 17, 8 South. 559. This latter section has no application to adjourned terms, but applies solely to special terms. The distinction between a special term and an adjourned term of the court is so obvious under our statutes, and has been so often pointed out by the court, that it is unnecessary to do so here. I Mayfield’s Dig. §§ 915, 916, 917. So, then, independent of the question of power or authority of the grand jury to investigate and indict for the offense alleged in the indictment, because not committed during the session of the court, it is invalid, and should have been quashed, for the reason that the judge was without authority to order a grand jury to be summoned under section 5001 of the code of 1896. This conclusion is clearly supported by the O’Brien Case, supra. See, also, O’Byrnes v. State, 51 Ala. 25. The case of Oakley v. State, 135 Ala. 15, 33 South. 23, is clearly not opposed to these views. In that case the act establishing the Walker county law and equity court expressly authorized the judge of that court to “order a grand jury to be drawn, summoned and empannelled for said court and county of Walker, whether or not a grand jury shall have already been had for said term of said court.” Nor does the section 5269 of the code have any application. O’Byrne’s Case, supra. As said in that case: “We cannot doubt that a grand jury, constituted in any other manner than prescribed by the statute, * * is without legal warrant. A grand jury is not a mere assemblage of 15 or 18 persons in the jury box, congregated by an order of the court or by their own volition, or at the summons or on the behest of an unauthorized person. It is a constituent element of a circuit or city court, having criminal jurisdiction, sitting at a regular term, drawn selected and summoned in a mode clearly prescribed, under the superintendence and in the exercise of the sound judgment, of the sworn
Reversed and remanded.