Peters v. State , 98 Ala. 38 ( 1893 )

STONE, C. J.

The District Court' of Colbert and Lau-derdale counties was created by the act approved February 13, 1891. — Sess. Acts 1890-91, p. 605. In section 9 of said act, it is provided “that the grand and petit juries shall be drawn and empanelled in the same manner as is, or may be, provided by law for grand and petit juries in the Circuit Court of said counties.”

By our latest jury law, approved February 28,1887 — Sess. Acts, p. 151, Code 1886, vol. 2, p. 131, note — after providing for the drawing of jurors, in section 9 of said act it is provided, “That out of the grand jurors so summoned and attending, the court shall organize a grand jury, as now provided by law, and if, by reason of sickness, or nonattendance, or any cause, a sufficient number shall not appear, the court shall order the sheriff to summon from the qualified citizens of the county, twice the number necessary to complete the grand jury, and from such number shall be drawn, in tbe manner required by law, a sufficient number to complete tbe grand jury.”

In Yol. 2, Code of 1886, section 4387, is tbis provision: ‘■‘At least fifteen persons must be sworn on tbe grand jury, one of wbom must be appointed as foreman by tbe court; and if be is discharged or excused for any cause after tbe jury is sworn or charged, tbe court may appoint another in bis place.” _ ■

_ At a District Court for Lauderdale county, commencing on .January 2, 1893, a grand jury was organized consisting of fifteen persons, of which J. H. Olive was appointed and sworn as foreman.- At a later day of tbe term, to-wit, on January 11, 1893,tbe court made tbe following order: “The grand jury • comes into court and reports that tbe number composing tbe grand jury have been reduced to thirteen by reason of tbe sickness of Hiram Cox and tbe sickness of tbe family of James H. Olive; it is ordered by tbe court that tbe sheriff summon from the qualified citizens of tbe county four persons, and place their names in a bat, from which to complete tbis grand jury; and tbe sheriff thereupon, after a compliance with tbe order of tbe court, drew from tbe bat tbe names of J. E. Cox and J. L. Howell, who being found to possess tbe necessary qualifications as grand jurors of tbis court at tbis term, they were then duly and legally sworn as grand jurors for tbe purpose of completing the grand jury as aforesaid. And tbe court then directed that owing to tbe absence of J. H. Olive, tbe regular foreman of tbe grand jury, that W. T. Calahan be sworn as foreman of tbe grand jury, which was accordingly done by tbe clerk of tbis court administering to tbe said W. T. Calaban tbe oath prescribed by law for tbe foreman of tbe grand jury. And after these proceedings were completed the grand jury retired to further prosecute their labors.”

On tbe next day, January 12,1893, tbe grand jury returned into court tbe indictment on which tbe defendant in tbis case was tried and convicted of grand-larceny. That indictment was returned “A true bill,” signed “W. T. Calaban, foreman of tbe grand jury.”

It will thus be seen that tbe grand jury, at that term of tbe court, was first organized, and consisted of fifteen members, of which body J. H. Olive was selected and sworn as foreman. Tbis was a judicial determination that tbe body should consist of fifteen persons. At a later day of tbe term, without making any order discharging or excusing any of tbe members constituting that body, tbe court added two members to its number. Tbis was done on tbe report of tbe body that one of their members was sick, and that another member, the foreman, had a sick family. Such order should not have been made, without a prior order discharging the jurors as to whom the report had been made. Made as it was, it had the effect of increasing the grand jury to seventeen members, although we feel morally sure such • was not the court’s intention. This was an error committed by the court itself in an order made, and not an error committed by a ministerial officer. It is fatal to the indictment, and will compel it quashed in the court below.—Finley v. State, 61 Ala. 201; Cross v. State, 63 Ala. 40; Scott v. State, Ib. 59; Weston v. State, Ib. 155; Peck v. State, Ib. 201; Murphy v. State, 86 Ala. 45.

Eeversed and remanded. 'The prisoner will remain in custody until discharged by due course of law.

Eeversed and remanded.