Yeager v. State , 8 Ala. App. 374 ( 1913 )

WALKER, P. J.

— Tbe objection to tbe indictment, first by plea in abatement, and then, when that was stricken, by motion to quash, was based upon tbe action of tbe court in adding a member to tbe grand jury to take tbe place of an original member of it wbo bad been excused, tbougb tbe withdrawal of such original member bad not reduced tbe membership of tbe body below tbe number required by law.

It was decided in tbe case of Patterson v. State, 171 Ala. 2, 54 South. 696, that tbe present jury law (Acts Sp. Sess. 1909, p. 305) did not repeal or supersede tbe provision of section 7282 of tbe Code, under which a grand jury of 15 members may be organized. Tbe grand jury now in question was organized with 18 members, as is authorized, but not required, by tbe present law. Tbe withdrawal of one of those members left tbe body still a legal grand jury. We must treat it as settled that after a grand jury has once been legally organized, and tbe number is subsequently reduced, tbe law does not authorize an increase unless tbe number is reduced below that required by law. — Osborn v. State, 154 Ala. 44, 45 South. 666; Nordan v. State, 143 Ala. 13, 39 South. 406; Code, §§ 7283, 7305.

It was expressly decided in tbe two cases just cited that tbe unauthorized addition of a member to tbe grand jury already possessing tbe membership required by law is not within tbe influence of tbe curative provisions of section 7572 of tbe Code, and has tbe effect of invalidating an indictment found by tbe body so added to. There is nothing in the modification of the terms of that provision made by section 23 of the present jury law to warrant a different conclusion. Following the former rulings refered to, it must he held that the court was in error in overruling the defendant’s motion to quash the indictment.

Reversed and remanded.