Tucker v. State , 152 Ala. 1 ( 1907 )

TYSON, C. J.

The defendant was indicted, for an assault with intent to murder, which, under the statute, is a felony. At the term at which the indictment was preferred he filed a motion, containing a number of grounds, to quash the indictment. To this motion a demurrer was interposed, which was sustained by the court. Thereupon he filed a number of pleas in abatement. One of these was that “the grand jurors who were organized and impaneled, and who returned the indictment against the defendant, were not drawn in the presence of the officers as designated by law to draw said jury.” Issue was taken upon this plea.

Section 5269 of the Code of 1896 provides that “no objection can be taken to an indictment by plea in abatement, or otherwise, on the ground that any member of the grand jury was not legally qualified, or that the grand jurors were not legally drawn or summoned, or on any other ground going to the formation of the grand jury, except that the jurors toere not drawn in the presence of the officers designated by law,” etc. Pretermit-ting the application of the principle, which obtains in this court, that taking issue upon a plea, without testing its insufficiency by demurrer, admits its legal sufficiency, we feel constrained to hold that the plea in this case was entirely good. The exception in the statute above italicised does not relieve the officers designated of the duty of drawing grand jurors from the box which they are required to prepare. — Code 1896, §§ 4982 et seq., 4989. They cannot make up the venire which is to compose the grand jury in any other mode; and, if they do so, advantage may be taken of it by plea in abatement, as was done in this case. — Cochran v. State, 89 Ala. 40, 8 South. 78. To allow the officers charged with this duty to select the grand jury in any other mode would not only violate the plain mandate of the statutes, but would open tbe way for the evils which it was manifestly their purpose to prevent. It was, therefore, error for the court to refuse to allow defendant to prove that the grand jurors were not drawn from the box at all, and the like, in support of his plea.

Furthermore, the plea in abatement and the plea of not guilty should not have been submitted to the jury at the same time. The special pleas should have been first tried : and defendant’s failure to make objection to the trial of both issues at the same time is not a waiver of the irregularity, and advantage of it may be taken in arrest of judgment, or on error. — Foster v. State, 39 Ala. 229; Faulk v. State, 52 Aa. 416; Barber v. State, 151 Ala. 56, 43 South. 808. The rule as to the waiver of the irregularity in misdemeanors is different. — Dominick v. State, 40 Ala. 680, 91 Am. Dec. 496.

And, again, error intervened in that the verdict of the jury was not responsive to both issues. The defendant had the right to have his plea in abatement passed upon by the jury, and this was not done by the verdict rendered. — Davis v. State, 136 Ala. Ala. 129, 33 South. 818.

Beversed and remanded.

Haralson, Simpson, and Denson, JJ., concur.