Jones v. State

Mar 2, 1907

Versions:43 So. 179

150 Ala. 54

1907 Ala. LEXIS 317

HARALSON, J.

Aftеr all the evidence was introduced, as the bill of exceptions states, “the defendant requested the court to givе the jury the following charges; each being in writing, and the court rеfused to give each *55charge, and the defendant resеrved ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍an exception thereto, separately.”

The case of Verberg v. State, 137 Ala. 74, 34 South. 848, 97 Am. St. Rep. 17, is decisive that these charges cannot be considered. The request was to give all the charges as an entirety, аnd if any one of them wás improper, there was no error in rеfusing the whole number. To the same effect is Johnson v. State, 141 Ala. 37, 37 South. 456; Yeats v. State, 142 Ala. 58, 38 South. 760; Gregory v. State, 148 Ala. 566, 42 South. 829; Bell v. State, 140 Ala. 65, 37 South. 281; Glover v. State, (Ala.) 40 South. 354.

To say no more of the other charges requested by defendant than that the general affirmative charge was requested ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍by him, which under the evidence could not have been given, is sufficient to сondemn the entire batch.

The defendant moved the court to quash the indictment in the cause, on the following grounds: “The circuit court at the fall term, Í906, Geneva county, appоinted E. H. Hill as special solicitor of said court during said term, thе regular solicitor being absent (on account of sickness); during the proceedings before the grand jury, Hon. Ó. D. Carmichaеl,' who was not a member of said grand jury, nor a special solicitor by appointment of said court, was present in sаid grand jury, examining witnesses in said cause, and otherwise taking part therein,” etc.

It appeared,'that C. I). Carmichael was present and conducted the examination of somе of the witnesses. He testified that he was in the grand jury (room) on Tuesday of the first week of the court, at the request of the sоlicitor, who was ill, and at the' request of ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍the judge,, and that, on that day he conducted or helped to conduct the examination of the witnesses, but that he did not remember whether he or the foreman, administered the oath of them; that the grand jury did not act or vote on the case when he was present.

He was an attorney at the bar, and also solicitоr for the county court of Geneva county, when the indictmеnt was found, and the case was tried. Boyett testied that he was a. witness before the grand jury, and according *56to his best knowlеdge, Mr. Carmichael administered the oath to him. Hughes testified, while ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Mr. Carmichael was present and examined him, he did not administer the oath to him.

If it were true that Carmichael administered thе oath to Boyett, it yet appeared, that there wеie other witnesses to whom he did not administer the oath, and bеsides Boyett’s testimony, there was other legal evidence before the grand jury. A motion to quash the indictment because found on insufficient evidence cannot, be entertained.—Agee v. State, 117 Ala. 169, 23 South. 486. It does not аppear that Mr. Carmichael gave the jury any counsel, or expressed to them any opinion unfavorable tо the defendant, or did any act affecting their deliberations. The defendant, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍under such conditions, suffered no injury from Carmichael’s presence in the jury room, and was not prejudiced by reason of his presence there. He has no reason to complain of it.—Blevins v. State, 68 Ala. 92; Cross v. State, 78 Ala. 433.

Other errors insisted on, as shown by the bill of exceptions, are the charges, and they cannot be considered.

Affirmed.

Dowdell, Simpson, and Dionson, JJ., concur.