Boyd v. State , 98 Ala. 33 ( 1893 )

HEAD, J.

The act regulating the drawing and organization of jurors for Mobile county (Acts 1886-87, p. 201) provides that twenty-four persons shall be drawn by the jury commissioners, in the manner the act prescribes, to be summoned as grand jurors for the City Court, and of these twenty-four names it shall be the duty of the court to impanel a grand jury of not less than fifteen. If on account of absence, or excuse allowed by the court, the number of grand jurors is reduced below fifteen, the court shall order the clerk to draw, in open court, a number of names which, in the opinion of the court, may be necessary to complete the grand jury, and such persons the sheriff shall be-ordered to summon forthwith as grand jurors; and from those who appear the grand jury shall be completed, if enough appear to complete the grand jury up to fifteen; if not, this process shall be continued until the grand jury is completed.

At the November Term, 1892, of the City Court, of the twenty-four persons who had been regularly drawn and summoned as grand jurors, in pursuance of the above stated provisions, twenty appeared, four of whom were excused by the court. The record then recites, “And it appearing .to the court that from excuses for good causes the grand jury is reduced to less than eighteen, to-wit, sixteen, the judge of the City Court of Mobile ordered the judge of probate to produce the City Court of Mobile jury box in open court, and that the clerk of the City Court of Mobile draw therefrom ten names, to complete the grand jury, and in compliance with the within order, the clerk of the City Court of Mobile drew from the City Court of Mobile jury box, in open court, ten names to complete the grand jury, and all of those summoned appeared in court, and out of this drawing, tbe court obtained tbe following named jurors, to-wit: Fred S. Cox and John S. Drags; and it now appearing to tbe court that tbe grand jury is complete and composed of tbe following named jurors, towit,” following with tbe names of tbe sixteen persons who bad originally appeared and tbe additional persons, viz. Fred S. Cox and Jobn S. Drags, and an order and proceedings organizing these eighteen persons as tbe grand jury for tbe term. Tbe indictment in this cause was presented by this body. Tbe organization was in plain contravention of tbe statute, and void. Tbe indictment is consequently void.—Cross v. State, 63 Ala. 40; Berry v. State, Ib. 126.

_ There is manifestly no merit in any of tbe exceptions reserved to tbe rulings of tbe court on tbe trial; so clearly so that a discussion of them is unnecessary.

Beversed and 'remanded. Let tbe prisoner remain in custody until discharged by due. course of law.

Beversed and remanded.