Billingslea v. State , 68 Ala. 486 ( 1881 )

SOMERVILLE, J.

The main questions presented in this case for our consideration relate to the organization of the grand jury in the court below. Of the eighteen persons originally summoned to constitute the regular panel, fifteen appeared, and answered to their names; and of these, seven only were accepted, the remainder being excused by the court from serving. The court thereupon ordered the sheriff to summon twenty-tivo suitable persons, possessing the requisite statutory qualifications ; this being twice the number needed to complete the organization, as demanded in such cases by the statute.—Code 1876, § 4754. The record does not show that the sheriff summoned more than twenty-one of this number, all of whom appeared, and from these the jury was completed under the direction of the court. The record further recites that, after the second venire was summoned, and had appeared, the court excused one Keenan, who was one of the seven originally selected from the first venire. It is insisted that these are irregularities of such a nature as to vitiate and render void the indictment in this case, which was found by the grand jury as thus organized.

Conceding that the points are properly raised by the record for our revision, we do not think they are well taken. In the first place, we will consider the irregularity on the part of the sheriff in summoning twenty-one persons, when the mandate of the court was to summon twenty-two. This error, we think, is cured by sections 4769 and 4889 of the present Code, as construed by the past decisions of this court. These sections read as follows :

“§ 4759. Above provisions directory merely. — The provisions of this article, in relation to the selection, drawing, and summoning of jurors, are merely directory / and juries selected, drawn and summoned, whether at an earlier or later day, must be deemed legal, and possess the power to perform all the duties belonging to grand and petit juries respectively.

“ § 4889. Objections to grand jury. — No objection can be taken to an indictment, by plea in abatement, or otherwise, on the ground that any member of the grand jury was not legally qualified, or that the grand jurors were not legally drawn or summoned, or on any other 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; and neither this objection, nor any other, can be taken to the formation of a special grand jury summoned by the direction of the court.”

These sections of the Code have been under review many times by this court, and we think the following principles can be deduced as having been settled. There are but two classes of cases in which objections can be sustained to an indictment, when they are based on irregularities in the organization of a grand jury: First, where such jurors “were not drawn in the presence of the officers designated by law.” Code, § 4889; Boulo v. State, 51 Ala. 18. Second, where there is some order of the court below, or some action of the presiding judge, appearing of record in the cause, and relating to the organization of the grand jury, which is without any warrant in the statute, or is contrary to its provisions. This embraces some judicial 'order, or act of the court, as con-tradistinguished from any act of its officers while ministerially executing any such order when lawfully made.—Cross v. State, 63 Ala. 40; Finley v. State, 61 Ala. 201; Boles v. State, 63 Ala. 30; Berry v. State, Ib. 126; Yancy v. State, Ib. 141; Scott v. State, Ib. 59.

We are unwilling to extend the principle settled in the cases of Finley and Gross, cited supra, any further than this ; and we therefore hold, that all irregularities in the selection, drawing or summoning of grand jurors, other than those specified above, are insufficient as grounds upon which to challenge tlie whole array. All other errors are cured by statute, the provisions relating thereto in the Code being merely directory and not mandatory, and irregularities of this nature are not reviewable in this court.—Code, § 4759.

Nor do we think there was any error in the action of the court excusing Keenan, without ordering two other persons to be summoned in his stead. It was competent to complete the jury from the tiuenty-one summoned to constitute the second venire, if they were sufficient in number, after allowing all proper excuses and challenges. There certainly was no excess of authority arrogated by the court in excusing Keenan after his acceptance, so far as shown by the record. The reasons for this action must be deemed sufficient, unless the contrary clearly appears. Imperative reasons may constantly arise for the exercise of such a power; as, the sudden sickness of a juror, after his acceptance, and before the organization is complete ; or the disclosure of his incompetency, wbich was before concealed, or unknown. The contingency which alone authorizes the court to act, in such cases, is the failure of as many as fifteen of the original panel to appear. This had happened, and the proper order was, thereupon, given as required by the statute. Our view is, that if a sufficient number appeared under the first order made to complete the jury, a second order was unnecessary. The statute is clearly susceptible of this construction, and it promotes the simplicity and economy of judicial procedure.

"It has been held more than once by this court, that the form of indictment for murder, as prescribed by the Code (p. 991), is sufficiently certain and definite, and is not viola-tive of any provision of the constitution, State or Federal. We are satisfied with the conclusions reached on this subject by our predecessors in Aikin v. The State, 35 Ala. 399, and Notes v. The State, 24 Ala. 672, holding the form in question to be sufficient. The demurrer to the indictment was properly overruled, under the authority of these cases.

Nor can we see any error in the action of the court excluding the evidence sought to be elicited by the appellant, to the effect that one Sturdevant was the reputed father of an illegitimate child born of the deceased, who was defendant’s wife. Such evidence was not made relevant by the fact that Sturdevant was suspected of criminal intimacy with deceased, before or at a time proximate to the killing. It had no tendency to establish the prisoner’s innocence of the homicide imputed to him by the indictment.

So, the declarations made by the defendant, before the homicide, relating to the troubles between him and his wife, the deceased, were not admissible, and the objection to the question.calling for them was properly sustained. No principle is better settled, than the proposition, that a defendant can not be permitted thus to make evidence in his own behalf, unless the declarations, thus proposed to be introduced, constitute a part of the res gestee.—Taylor v. The State, 42 Ala. 529; Stewart v. The State, 63 Ala. 199.

We discover no error in the record, and the judgment of the Circuit Court is affirmed.