Preston v. State

| Ala. | Dec 15, 1879

MANNING, J.

Appellant was indicted for carrying a pistol concealed about his person.

The objection of illegality, because it is not declared in the record that the names of the persons who were summoned to serve as grand jurors were drawn by the officers to whom the law committed that duty, cannot be sustained. The process of this drawing is never entered on the minutes of the court. That act is performed some time before the term of the court begins. When the court is opened, the persons summoned by the sheriff, and named in the venire previously issued, which he brings with his return thereof into court, are called; and a grand jury is then constituted. With the recital of the opening of tbe court, and of these proceedings therein, the record of the cause properly commences. And if a person who is indicted for any offense, wishes to object that the grand jurors, by whom the accusation is made, were not drawn in presence of the officers designated by law, he must do so by plea in abatement. Code of 1876, §§ 4889, 4890.

2. The fact that defendant was engaged to play a part in which a pistol was to be used, in a school exhibition on the next or a different day from that on which he carried a pistol concealed, and drew it in a personal difficulty with another, afforded no excuse- for the offense with which he was charged. The circuit judge did not err in refusing to give the instruction asked.

Let the judgment be affirmed.