51 Ala. 25 | Ala. | 1874
Under our statutes, it was made the duty of the sheriff of each county to obtain biennially a list of the householders and freeholders residing in his county, from which list must be selected the names of such persons as may be thought competent to discharge the duties of grand and petit jurors for the county. R. C. § 4062. The sheriff, judge of probate, and clerk of the circuit court, or any two of them, must meet, biennially, on the first Monday in May, or within thirty days thereafter, at the office of the clerk of the circuit or city court, and select from said list the names of such persons as, in their opinion, are competent to discharge the duties of grand and petit jurors with honesty, impartiality, and intelligence, and are esteemed in the community for their integrity, fair character, and sound judgment; but no person must be selected who is under twenty-one years of age, or over sixty years of age, or who is a habitual drunkard, or who is afflicted with a permanent disease. R. C. § 4063. These sections of the Code have been amended, so as to require the jurors to be drawn annually, from the lists of registered voters on file in
The tenth chapter of the Penal Code of 1841 (Clay’s Dig. 450) is not materially variant from the present statute. That chapter was the subject of consideration in the case of Brooks v. The State (9 Ala. 9); and it was declared that the purpose was to provide a select class of individuals to serve as grand and petit jurors, instead of permitting them to be constituted, as well as summoned, at the discretion of the sheriff, or other executive officer of the law, from the citizens of the county generally, and at large. It was further said, the selection of this class of individuals is confided to a board of commissioners (then the sheriff, judge of the county court, and clerk of the circuit and county courts, who were charged with the duties now devolved on the judge of probate, sheriff, and clerk of the circuit or city court), and that is invested with large discretionary powers in the selection and rejection of individuals who are to discharge the responsibilities of jurors ; and that they were entirely independent of supervision or control. This judicial construction, it is presumed, was known to the legislature, when they adopted the Code containing the same statute substantially; and it is further presumed they intended to adopt this construction. 1 Brick. Digest, 349, § 2.
We cannot doubt that a grand jury, constituted in any other manner than prescribed by the statute, is, in the language of this court, in State v. Brooks, supra, “without legal warrant.” a grand jury is not a mere assemblage of fifteen or eighteen persons in the jury box, congregated by an order of the court, or by their own volition, 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 jurisdiction, sitting at a regular term, drawn, selected, and summoned in a mode clearly prescribed, under the superintendence, and in the exercise of the sound judgment, of sworn officers of the law. McMillen v. State, 8 Sm. & Marsh. 587. The statute, it is true, declares that its provisions in relation to the selection, drawing, and summoning of jurors are merely directory; and that juries selected, drawn, and summoned at an earlier or later day must be deemed legal. R. C. § 4086. When this statute is read, as it must be, in connection with the succeeding section of the Code, prohibiting any objection to the formation of the grand jury except that it was not drawn in the presence of the officers designated by law (R. C. § 4087), it is obvious that it is indispensable to the constitution of a grand jury (unless the particular case in which the court is empowered to form or originate a jury exists), that it shall be drawn by the officers having exclusive authority to draw it. When they have exercised the power, the power itself is exhausted. Their action
It is inconsistent with tbe statutes conferring on tbe court power in special cases to form a grand jury, to suppose tbat there is any sucb general power in tbe court, or that it exists in any other than tbe particular case. If there was a general power, the statutes would bave no office to perform. There not being sucb general power, tbe expression of the power in particular cases excludes its existence in any other. Tbe special power extends only to a case in which tbe officers designated by law to select, draw, or summon a grand jury, bave neglected to perform their duties, or to cases in which tbey bave not tbe power. These officers are not authorized to draw and summon a grand jury for a special term of tbe circuit or city court. Therefore, wben tbe public good may require it, the court can originate a grand jury for a special term. Or, if the grand jury drawn and summoned according to law bave finished their labors and been discharged, tbe term of tbe court not having expired, and a criminal offence is committed, which, in tbe judgment of tbe court, requires immediate investigation, then, the officers designated to draw and summon not having acted, and tbe power which tbey possess, so far as it refers to that term of tbe court, having been exhausted, tbe court may form a grand jury-
Tbe object of the statutes cannot be mistaken. If tbe power ever existed in any court, which the court in this case exerted, it was intended to withdraw it. Sucb a power is so irresponsible,— so capable of being used to impair tbe sanctity and purity of the grand jury,— tbat tbe legislature bave, in effect, denied its existence. If tbe court could legally set aside tbe venire drawn and summoned by tbe officers having authority to draw and summon it, the power is unlimited. The jurors summoned under its order could be set aside in tbe exercise of tbe same power, and so from time to time, until a jury was organized to meet the caprice or prejudice of tbe judge. Tbe practical results of tbe operation of tbe action of the court are opposed to tbe spirit of all our laws. Portis v. State, 23 Miss. 578.
Tbe judgment of conviction must be reversed, and a judgment be here rendered quashing the indictment, and discharging tbe prisoner.