State v. Clarkson , 3 Ala. 378 ( 1842 )

GOLDTHWAITE, J.

1. It appears from the statement of pleadings, and facts connected with the questions referred, that three distinct classes of defences, were at issue before the jury. The first of which, denies that the indictment was found by a grand jury constituted in conformity with the requisitions of the act of 1836 ; Aikin’s Digest, 624. The second relates exclusively to the disqualification of individual jurors. And the third, asserts that the indictment was neither found by a grand jury consisting of the requisite number of jurors, nor returned into Court, according to the forms of law.

The sufficiency of these defences to abate the indictment, is virtually admitted by the joinder of issue to the count, and the only matter before the Court was, as to the competency of the evidence, and its effect in pi’oving the issues. We are thus precise in stating the true question, because it might otherwise be inferred that we had examined these pleas with respect to their legal sufficiency.

In the case of The State v. Allen, 1 Ala. Rep. N. S. 442, we had occasion to examine questions very similar, and presented in the same manner. We then held, that it was not competent to impeach the certificate made by the officers, whose duty it is, under the act of 1836, to select the grand juries. Under the influence of this decision, it was entirely proper for the Circuit Court to have excluded all the evidence, that in point of fact, the certificate was not signed by the clerk; and that which shewed that another acted for him when the jury was selected, because the certificate had been made, returned and acted on by the proper Court, and therefore was, for all purposes, a portion of its records.

S. But the certificate, when produced, conclusively showed that the requirements of the statute had not been pursued. The jurors, instead of being selected, were drawn by lot; thus bringing the issue within the decision of this Court; in the case of The State v. Williams, 5 Porter, 130. The fourth plea of the defendant, asserts the precise fact disclosed by the record in evidence, and we think the Court erred ip charging the jury, as we must presume it did, that the issue ought to be found against the defendant,

3. No evidence was before the jury, to sustain the second class of pleas, and we have just decided in William’s case, that twelve members may constitute a grand jury if a larger number is at first impannelled. Nothing then remains to be examined but the evidence offered to support the issue on the seventh plea. The fact to be proved, or rather disproved, was the authenticity of the indictment, as a record of the Court. There always is, and necessarily must be, a period in the progress of every prosecution, when the indictment is in freri, and we are not aware that any entry made in it, or upon the minutes by the clerk is necessary to give it effect as a record. Indeed the very fact of pleading to it, admits its genuineness as a record. This question has never before been the subject of an issue before the jury, but it has on several occasions received the consideration of the Court in other respects, and we have nothing to add to the reasons given in those cases. .The State v. Greenwood, 5 Porter, 447; The State v. Matthews, 9 Porter, 370.

For the error we have already noticed, the judgment is reversed, and the cause remanded.