Nixon v. State

Dec 15, 1881

Versions:68 Ala. 535

_ SOMERYILLE, J.

Section 4890 of the present Code pro-_ Addes, among other things, that “ a plea in abatement, on thе ground that the grand juror’s by whom it was found were not drawn in the presence of the officers designated by law, must be filed at the term at which the indictment is found.”

This statute was construed by this court in Russell v. The State (33 Ala. 366), and its strict letter was so far departеd from, as to hold that such a plea is in time, if filed at the first subsequent ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍term at which it could be done, after the defendant is informed of the existence of thе prosecution, by arrest under capias on the indictment. This construction may be *537justified, upon the theory, that the law never requires an impossibility, and it would be impossible for one to plead before the indictment is docketed, and it can not be docketed prior to the arrest of the defendant.

So, we are clear in our judgmеnt, that the 12th Buie of Practice for the Circuit Courts (Code, 1876, p. 160), regulating the time within which pleas in abatement are to be filed, has no reference to criminal proceedings.' These rules are evidently framed with referenсe to civil cases, and must be so construed. In criminal cases, such pleas may be interposed at any time before the plea of the gеneral issue, or other plea to the merits, provided it is done at the first practicable term, and upon arraignment.—1 Bish. Cr. Proc. § 730.

In the present case, the effort is.to assail the organization ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the grand jury, on the ground that “ thе jurors were not drawn in the presence of the officers designated by law.” Code, § 4890. A motion to quash the indictment was first made, and was overruled by the Circuit Court; and after-wards a plea in abatement was sought to be filed, embodying the same grounds as the motion to quash ; but the plea was rejected by the cоurt, as coming too late.

The specific ground of objection urged wаs, that one James Duckett, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍who was not drawn, selected or impanellеd as a grand juror, fulsely personated an absent juror by the name of Luke D. Duckett, and participаted in the proceedings of the grand jury, voting with that body, and being otherwise aсtive in finding the present indictment.

It is our opinion, that the case presented comes within the letter of the statute, and certainly within its spirit. The grand jury is an inquest bеtween the government and its citizens, and, as said in United States v. Coolidge (2 Gall. 367), “it is of the highest importancе that this institution be preserved in its purity, and that no citizen be tried until he has been rеgularly accused by the proper tribunal.” It is impossible to estimate, and equally impracticable to speculate upon the influence еxerted upon the deliberations of such a body by one bold, bad man, who сorruptly insinuates himself into their secret counsels, unrestrained by the safeguаrd of adjudged qualifications. He may, possibly, have no other purposе ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in view than the premeditated violation of the duties imposed by a grand juror’s oath, which are, to keep secret the States’ counsel, his fellows’ and his own, and to present no person from envy, hatred or malice, nor leave any one unpre-sented from fear, affection, reward, or the hope thereof.—Code, § 4755. If we could permit the false personation of one grand juror, the same rule of justification must, of necessity, аpply to any greater number. There can be no rule of limitation, *538in such аn important matter, which can stand the test of logical soundness, short of total exclusion. We think the facts set up in the plea in abatement and the motion to quash, if true, would entirely vitiate the indictment. The statute requires that all of the jurors constituting the original venire, should be drawn in presence of the officers designated by law; and where one or more of them are not so drawn, the objection may be prеsented either by plea in abatement, or by motion to quash.—Code, §§ 4889-90; Sparrenberger’s case, 53 Ala. 481; State v. Flemming, 22 Amer. Rep. 552; Reich v. State, 21 Amer. Rep. 265; Nichols v. State, 5 New Jersey (Law), 539; State v. Cantrell, 21 Ark. 127.

Whethеr there may not be cases in which the refusal of the Circuit ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍Court to quash an indiсtment would be revisable, need not be decided.—State v. Jones, 5 Ala. 666. It was error to refuse to the defendant permission to file his plea in abatement, and to make proof of the facts averred; and for this ruling of the court, its judgment is reversed, and the cause remanded.