Clark v. State , 240 Ala. 65 ( 1940 )

The rule adverted to from the case of Pope v. State, 168 Ala. 33,53 So. 292, was not departed from in Oliver v. State,232 Ala. 5, 166 So. 615, 617. Each case is judged by its particular facts. In the Oliver case, supra, the coroner was active in investigating the facts of the homicide and testified at the trial. Such official should not have been permitted by the sheriff to have had charge of the jury and "to remain with them during much of their deliberation." No such circumstances existed in the instant case. An officer is not rendered incompetent as a witness by the fact that he, as such officer, had the duty of caring for, attending to and being in charge of the jury. 70 Corpus Juris, § 245, p. 183.

It was declared in Stone v. State, 105 Ala. 60, 17 So. 114, that where it is shown in a criminal case that the defendant and his accomplice confessed in the presence of each other that they committed the crime together, evidence tending to show amotive on the part of either to commit the crime is admissibleagainst both. The court, therefore, properly admitted the evidence tending to show a motive on the part of Teal as indicated by the witnesses Hardy, Pippin and Wilkerson. Moreover the court specifically excluded from the jury all statements, declarations or admissions of Teal not made in the presence of the defendant.

It is well established by this court that: "A majority of jurisdictions adhere to the rule that, where there is some evidence before the grand jury tending to connect the accused with the offense charged, the lack of evidence upon some essential element of the offense is not a ground for quashing the indictment. United States v. Reed, (1852) 2 Blatchf. 435, Fed.Cas. No. 16,134; Washington v. State (1879) 63 Ala. 189; Jones v. State (1887) 81 Ala. 79,1 So. 32; Mackey v. State (1914) 186 Ala. 23, 65 So. 330; Gunter v. State (1926) 21 Ala. App. 554, 110 So. 58; State v. Randolph (1909) 139 Mo. App. 314, 123 S.W. 61; State v. Bragg (1920) Mo. App., 220 S.W. 25; State v. Dayton (1850) 23 N.J.L. 49, 53 Am.Dec. 270." 59 A.L.R. 579.

This has been followed in many jurisdictions and the several earlier cases by this court are cited in the above excerpt from 59 A.L.R. 579.

In the more recent case of Ex parte State ex rel. Attorney General (Gore v. State), 217 Ala. 68, 69, 114 So. 794, 795, it is said:

"In Agee v. State, 117 Ala. 169, 23 So. 486, the court gave application to this rule, and sustained the trial court in refusing to allow the defendant to prove the testimony of the witness before the grand jury. The rule was again applied in Washington v. State, 63 Ala. 189, when it was attempted to show the testimony before the grand jury in order to establish that there was no legal evidence, but only hearsay, before that body, connecting the defendant with the crime charged. The refusal of the trial court to receive this testimony was approved, the court saying:

" 'In refusing to entertain the motion to strike the indictment from the file and quash it, the city court ruled in precise accordance with what was said by this court in Sparrenberger's Case [Sparrenberger v. State], 53 Ala. 481 (25 Am.Rep. 643). * * *'

"The Sparrenberger's Case was again approved in Bryant v. State, 79 Ala. 282, and the rule therein announced has not been departed from in this court. * * *"

In accordance with the above rule, the authorities are collected in 16 Alabama and Southern Digest, Indictment and Information, 137(4), p. 102. It is therein stated, among other things, as follows:

"Where an indictment is based on evidence of witnesses or legal documentary evidence before a grand jury, no question as to the sufficiency of the evidence can be raised on a motion to quash the indictment. Agee v. State, 117 Ala. 169, 23 So. 486.

"Where an investigation was made before the grand jury which returned the indictment, the sufficiency of the evidence adduced before that body cannot be raised on a motion to quash the indictment. Carl v. State, 125 Ala. 89, 28 So. 505.

"Where an indictment is based on evidence before a grand jury, no question as to its sufficiency can be raised on a motion to quash the indictment. Mackey v. State, 186 Ala. 23,65 So. 330."

See also Hall v. State, 134 Ala. 90, 111, 113, 114,32 So. 750; Note, 28 L.R.A. 325, 326.

One ground of the motion to quash is based upon the fact that "hearsay" testimony was considered by the Grand Jury. This question was held to be improper in United States v. Beadon, 2 Cir., 49 F.2d 164, certiorari denied in Beadon v. United States, 284 U.S. 625, 52 S.Ct. 11, 76 L.Ed. 533. The subject has been discussed by Joyce on Indictments, paragraph 238; 31 C.J. § 374, p. 801. This court has not departed from the rule declared in Sparrenberger v. State, supra; Franklin v. State,233 Ala. 203, 171 So. 245.

The rulings of the trial court are based on the averments in the motion and plea as to the effect of the evidence before the Grand Jury. No error was committed under the State or Federal Constitutions as to the sustaining of demurrer to the motion to quash and to the plea containing like averments.

The grounds of the motion to quash and the plea go to the sufficiency of the evidence before the Grand Jury that returned the indictment. All of the authorities agree that such grounds are not well taken.

It results that the application for rehearing should be, and is, overruled and the judgment of the circuit court affirmed. It is so ordered.

Application for rehearing overruled. Affirmed.

All the Justices concur.