Hale v. State

64 So. 530 | Ala. Ct. App. | 1913

THOMAS, J.

The appellant, who was indicted for murder in the first degree, pleaded not guilty on arraignment. Subsequent, and on the day of his trial, he filed a motion to quash'the indictment on a ground going to the formation of the grand jury that returned the indictment. The court committed no error in overruling the motion, and this for two reasons: Section 23 of the jury law (Acts Sp. Sess. 1909, p. 315) requires, in mandatory terms, in the first place, that such an objection to an indictment must be taken only by a plea in abatement, and, in the second place, it likewise requires that such plea in abatement must in all cases be filed before the plea to the merits. — Morgan v. State, 8 Ala. App. 172, 63 South. 21; Spivey v. State, 172 Ala 393, 56 South. 232.

The defendant, at the trial, also made a motion, which was likewise overruled, to quash the special venire of jurors served upon him, and predicates his contention that this motion should have been granted on the following state of facts disclosed by the record. The venire for the regular jury drawn to serve for the week in which defendant was to be tried, to wit, the week commencing February 24, 1913, consisted of 45 persons, and was issued on February 5, 1913, and made returnable on February 24, 1913. On February 14, 1913, however (ten days, as seen, before the return day of this venire), the sheriff actually returned it into court, and that as fully executed as to 42 of the persons named in it, but not executed as to 3 of such persons, each of whom, the return stated, was “out of the city, and not found in Jefferson county.” Three days after this return was made, and seven days before the regular return day of that venire, the defendant was arraigned, to wit, on February 17, 1913, when a special jury of 45 persons was then drawn, and an order entered setting his trial for February 24, 1913, and requiring the sheriff to summon for that day 87 persons as a venire to try defendant’s case, including the 42 persons before mentioned as having been summoned on the regular venire. The defendant insists that this premature return made by the sheriff on the regular venire was void in that, having been made before the regular return day of the writ, it failed to show a full or complete execution of that writ, and that, being void, it could not form a valid predicate or basis upon which the court could proceed, under section 32 of the jury law, in drawing, on the day of defendant’s arraignment, "which, as seen, was before such regular return day, a special jury for the trial of defendant’s case, since the regular venire not having been then fully executed, and there then remaining seven days for its further execution, as appearing from the face of the return, the court could not properly say that the 42 persons of the regular venire that had been summoned up to that date were all that would be summoned, and that consequently its action in relying on this premature return, and in assuming therefrom that the 3 regular jurors shown therein not to have been summoned would not be summoned, was unauthorized and void.

It is not to be disputed that 22 Am. & Eng. Ency. of Law (1st Ed.) 196, cited by appellant, correctly states the general rnle relative to the return of process as .fol- ' lows: “Process should properly be returned on the return day; if, however, it has been served, there can be no objection to its being returned before the regular day, since no possible injury can occur from it. But, if the return is to be not found after diligent search or ‘not executed’ or of similar character, showing a non-execution, it must not be made before the regular return day.” See, in connection, section 16 of the jury law (Acts Sp. Sess. 1909, p. 311). But the remedy of one circumstanced as was defendant for such a premature return by the sheriff to a regular venire is not by a motion to quash the venire served upon defendant, as was here resorted to, because our jury law denies to the defendant such remedy. Section 29 thereof expressly provides that “no objection can be taken to any venire of jurors except for fraud in drawing or summoning the jurors”; and sections 17 and 32 of the same statute provide that, “if the sheriff fails to summon any jurors drawn, or any person summoned fails or refuses to attend the trial, or there is any mistake in the name of any person drawn or summoned, none nor all of these grounds shall be sufficient to quash the venire or continue the cause.” We are of opinion, therefore, that the defendant’s remedy for the premature return, if he deemed himself aggrieved thereby, was to have, on his arraignment, or at some other appropriate time, made proof that the 3 persons reported in the return as being “out of the city, and not found in the county,” would probably return to the city or county before the regular return day of the venire, and to have then moved the court on such showing to postpone his (defendant’s) arraignment until that regular return day, and to require the sheriff in the meantime to continue in an effort to serve those persons. If he succeeded, the defendant would then have had the benefit of their names on Ms venire when subsequently arraigned, and, if he failed, it would furnish no ground to qnash the venire. Officers are presumed, in general, to have discharged their full duty and a sheriff’s return prima facie imports verity as to the facts stated in it (Paul v. Malone & Collins, 87 Ala. 544, 6 South. 351); consequently the court, for the purpose of upholding the premature return, was warranted in assuming, until the contrary was shown, that the sheriff had ascertained before making this return, that the 3 mentioned persons would remain out of the city and county at least until after the regular return day. If the facts assumed be true, a delay in making the return wonld have been useless, and would not have resulted in serving either of such persons; and, if they were not true, it was incumbent on defendant, if he considered himself injured by the assumption that they were true, to have seasonably impeached the return. Failing to do so, he is, under our jury law, without just or legal cause for complaint.

The several objections i o evidence are entirely without merit, and with two exceptions are abandoned in the brief of defendant’s counsel. One of these relates to the action of the court in permitting the state’s witness Lynn, who on cross-examination had testified that he had been once convicted of.buying stolen property, to state on redirect examination that this conviction was more than 20 years before, and that at that time he was only 20 years old. Such evidence we think admissible to go to the jury as a circumstance to aid them in determining how much the witness’ testimony on the present trial should be discredited, if at all, by reason of such prior conviction for a crime involving moral turpitude. It certainly showed that he had had time to reform, Avhether he did or not, and that the crime had been committed Avhen he was at such an age that it was more likely lie could and would subsequently reform than if committed in more mature years after habits and character, whether good or bad, became more permanently fixed.

The court committed no error in excluding, upon motion of the solicitor, the statement that was excluded or stricken from the showing made by defendant for his absent witness, Wingo. The facts stated in the statement so stricken or excluded were entirely immaterial to any issue in the case.

Charges 7, 11, and 12 — the only refused ones urged in the brief of defendant’s counsel as being good — were each properly refused. Though otherwise faulty, no more need be said with respect to any of them than that each is involved, confusing, and misleading — so clearly so, as will appear from a mere reading of each, as to save the necessity of a discussion.

We are likewise of opinion that there is no merit in the contention that the court erred in his ex mero mo tu explanation to the jury of given charges 1 and .2. It was not a qualification, limitation, or modification of either of these charges, but a mere explanation, and a correct one, of the meaning of those charges, which was entirely proper. — Morris v. State, 25 Ala. 57; Williams v. State, 98 Ala. 22, 12 South. 808.

We find no error in the record, and the judgment of conviction is affirmed.

Affirmed.