86 Ala. 45 | Ala. | 1888
The jury law approved February 28, 1887, was in force in Elmore county, at the time the grand jury was drawn and organized, which preferred the indictment in this case. — Sess. Acts 1886-7, p. 151; Code of 1886, § 4299, note. The sole question raised on this appeal is, that the grand jury was not drawn according to the provisions of the statute. The alleged error is as follows: The statute (§ 4) provides, that the jury commissioners shall first draw the requisite number of names, who shall con
The defendant had been arrested, and was in custody, under the charge for which he was indicted, tried and convicted. When the venire was called, and before any steps were taken in the organization, the defendant challenged the array, for the irregularity above pointed out. He proved the facts as averred, and they were not controverted. The court overruled the motion to quash the venire, organized the grand jury from the names so selected, and the defendant excepted.
We have several times held, that the later statutes regulating the drawing and impanelling of juries have not repealed section 4445, Code of 1886 — section 4889, Code of 1876. That section declares, that “no objection can be taken to an indictment, by plea in abatement or otherwise, .... on any ground going to the formation of the grand jury, except that the jurors were not drawn in the presence of the officers designated by law.”—Abernathy v. State, 78 Ala. 411; Harrington v. State, 83 Ala. 9. And our uniform ruling has been to disallow all defenses save one, which rest on irregularity in the drawing or impanelling of the grand jury, except the statitory ground that they “were not drawn in the presence of the officers designated by law.” Dotson v. State, 62 Ala. 141; Bales v. State, 63 Ala. 30; Cross v. State, Ib. 40; Green v. State, 73 Ala. 26; Nixon v. State, 68 Ala. 535. The additional exception referred to above is, where there is some order of the court, or some action of the presiding judge, appearing of record and relating to the organization of the grand jury, 'which is without warrant in the statute, or is contrary to its provisions.—Cross v. State, 63 Ala. 40; Billingslea v. State, 68 Ala. 486; Posey v. State, 73 Ala. 480. Under our several rulings, we hold that the Circuit Court did not err in overruling the motion to quash the venire.
While we feel constrained to affirm the judgment of conviction in this case, we must be permitted to express our re
Affirmed,