Peters v. State , 100 Ala. 10 ( 1893 )

COLEMAN, J.

The defendant was indicted for the larceny of “two bales of cotton,” the personal property of Robert Walker, of the value of eighty dollars. The property was described with sufficient definiteness, and the demurrer on this account was properly overruled. The form for larceny given in the Code of 1852 used the phrase “a bag of cotton.” The present Code in the form given for removing or concealing personal property uses the phrase “ one bale of cotton.”

The defendant moved to quash the venire upon-several grounds. It is contended that the motion came too late. The bill of exceptions states that the “ defendant demurred to the indictment and the court overruled the demurrer to the indictment.” “The court then put the defendant upon his plea, and to the indictment the defendant pleaded not guilty.” “ The solicitor for the State announced ready for trial. The defendant then submitted a motion to quash the venire,” for causes set out in the motion. It will .be seen from this statement that the cause had not been submitted to the jury, and the defendant had not been called upon to announce whether he was ready for trial and had not so announced. We hold the motion was made in proper time. The record shows that the solicitor demurred to all the grounds upon which the motion was based, except the 5th, 6th and 9th.

There is nothing in the record entry to show that the court acted upon the demurrer to the several grounds of the motion. There is a recital in the bill of exceptions that such action was taken by the court, but a judgment upon demurrer appearing only in the bill of exceptions is not revisable.—Powell v. The State, 89 Ala. 172; Steel v. Savage, 85 Ala. 230; Elford v. Loeb, 82 Ala. 429.

The judgment entry proper .recites that the motion to quash the venire was overruled. No evidence was offered in support of the motion to quash the venire, except as to the 5th, 6th and 9th grounds. Upon these issue was joined. The law does not authorize the commissioners or the court to select grand jurors from those drawn both as grand jurors and petit jurors. Those -first drawn constituted the grand jury and the others the petit juries.— Well’s case, 94 Ala. 1.

In support of the 5 th and 6th grounds upon which issue was joined, the court did not err, in sustaining an objection to the question propounded to the witness below. Neither the questions nor any proper response thereto could be relevant to the issue. They referred to some matters wholly foreign and the questions were irrelevant. The special act establishing the District Court of Colbert and Lauderdale counties (Acts 1890-91, pp. 608-9), provides that “ the judge of said court shall at any time during said term, when he may deem it expedient in open court clraw from the jury box now required by law to be kept and prepared in said- counties, such number of petit jurors as may be required for the several weeks of said court; whether during the regular or adjourned holding of said court,” etc. The judge drawing jurors under the special act, should conform to the rules required by commissioners, when they perform this duty- '

The juries were drawn by the judge under this provision of the statute, and not by the commissioners as stated in the 5th and 6th grounds of the motion. The 5th and 6th grounds were not sustained by proof, and the jurors having been drawn under the special act, the motion itself was without merit. The 9th is frivolous. The order for the summons of the jurors, that they appear at the “next term of the court,” is a mere clerical misprision. The exact date on which the jurors were to appear, to-wit, Monday, the 10th day of July, 1893, and Monday, the 17th day of July, 1893, is set out in the order of the court, and the date is definitely fixed also in the order of summons issued by the clerk to the sheriff.

There is no error in the record.

Affirmed.