Fryer v. State
41 So. 172
Ala.
1906
Check Treatment
TYSON, J.

Thе indictment upon which this defendant was conAucted was preferred by a grand jury organized at an adjourned term of the court, after dischargе 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 fоlloAvs: “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, cаuse an order to be entered on the minutes commanding the sheriff fortlnvith tо summon eighteen persons possessing the requisite qualifications of grаnd 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 knоAAoi to the court that since its adjournment, and since the discharge оf 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 сounty, possessing the requisite *7qualifications of grand jurors, to appear on Wednesday, July 19, ‍‌​‌​​​‌​‌‌‌​‌‌​​​​​​‌​‌‌​‌‌​‌​‌​‌​​‌​​​​​‌​‌​‌​‌‍1905, and serve as grand jurors for tliQ said adjourned term.”

It is entirеly clear from this language that the order was not made ‍‌​‌​​​‌​‌‌‌​‌‌​​​​​​‌​‌‌​‌‌​‌​‌​‌​​‌​​​​​‌​‌​‌​‌‍under the seсtion 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 sрecial terms. The distinction between a special term and an аdjourned 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 herе. 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 indiсtment, 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 tо 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 cоunty 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 stаtute, * * 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 vоlition, 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 jurisdictiоn, sitting at a regular term, drawn selected and summoned in a mode clearly prescribed, under the superintendence and in the exercise оf the sound judgment, of the sworn *8officers of law.” The motion to quash the indictment should have been granted.

Reversed and remanded.

Weakley, C. J. and Simpson and Anderson, JJ., concur. „