Cochran v. State , 18 Ala. App. 403 ( 1922 )

On the trial the defendant filed the following plea in abatement:

"State v. Elmer Cochran. "Comes now the defendant and for plea in abatement of the indictment saith that the grand jury which found the indictment in this case was illegal and without authority of law, in this: That on the 18th day of August, 1919, during a regular term of this court, a grand jury was organized and entered upon the discharge of their duties and were engaged in their labors until, to wit, on the 22d day of August, 1919, when they finished their labors and were discharged by the court, and allowed to disperse and go to their respective homes, and that at the time they finished their labors and dispersed the court did not make or enter on the minutes or records of said court any order permitting said grand jury to take a recess subject to the call of any judge of said court, or supernumerary judge or the Chief Justice of the Supreme Court; that on the __________ day of November, 1919, the court called a special term of said court to convene November 24, 1919, and then and there ordered said grand jury to reassemble on said 24th day of November, 1919, and that said grand jury, without further organization, found the indictment in this case and returned the same into this court on the 26th day of November, 1919, and was the same grand jury which had been discharged August 22, 1919, and without further reorganization.

"Russell Johnson, Attys. for Defendant.

"Filed Dec. 6, 1920.

"H.C. Hood, Clerk."

This plea was demurred to, and demurrer sustained. Under an act of the Legislature of 1915 (Acts 1915, p. 707), the term of the circuit court is fixed from the first Monday in January to and including the 30th day of June, and from the first Monday after the 4th of July to and including the last Saturday before Christmas day of each year. By an act of the Legislature of 1919 (Acts 1919, p. 1039) it is provided for the organization of a grand jury for each term of the court, "who shall be impaneled and sworn as the grand jury for the term (italics ours) of the court." That the grand jury was permitted by the court to disperse and go to their several homes did not discharge them as grand jurors. They were and remained a part of the organization of the court until the expiration of the term, subject to the call of the presiding judge. The plea shows on its face that the grand jury reassembled at the call of the presiding judge, during the time fixed by law for the holding of the regular term of the court, and before the time of their duties as grand jurors had expired. The demurrers were properly sustained. Whittle v. State, 205 Ala. 639, 89 So. 43.

The conversations between the defendant and other parties present at the still at the time the whisky was being made, relative to the operations then going on, were part of the res gestæ and as such were admissible.

The fact that defendant admitted ownership of a gun found near the still may under the facts of this case have been immaterial, so long as there was no dispute as to his being present; but, if so, the fact was not injurious or prejudicial to defendant's case. The proper predicate was laid for the admission of the evidence tending to prove a confession and hence the court's ruling was without error.

A witness for defendant, who testified to the good character of defendant, was asked on cross-examination, "You have heard that he was convicted in Hanceville for selling liquor?" Under the decisions, this ruling was not error. Vaughan v. State,201 Ala. 472, 78 So. 378; Jimmerson v. State, 17 Ala. App. 552,86 So. 153; Vaughn v. State, 17 Ala. App. 383, 84 So. 879; Carson v. State, 128 Ala. 58, 29 So. 608.

The other rulings of the court on the evidence, if error, were without prejudice.

Charge 2 predicated an acquittal on a consideration of a part of the evidence, and for that reason was bad.

We find no error in the record, and the judgment is affirmed.

Affirmed.

On Rehearing. Charge No. 2, as requested in writing by defendant, is materially different from charges held good in Forney v. State,98 Ala. 19, 13 So. 540, and Beason v. State, 5 Ala. App. 103,59 So. 712, in that the charge requested in the instant case begins by a statement of the duty of the jury, merely, to weigh and consider all the evidence in the case, which is elementary. It then proceeds to predicate an acquittal upon a reasonable doubt growing out of any part of the evidence, which is not the law, while the charges in the cases supra predicate a reasonable doubt upon the whole evidence.

Application overruled.