Whitehead v. State , 206 Ala. 288 ( 1921 )

Defendant filed a plea in abatement to the indictment to the effect that the same was not found by a legally constituted grand jury, in that one member of said grand jury participated in the deliberations and proceedings leading up to the indictment, and in voting thereon, to wit, Barney Castelow was at the time a nonresident of Alabama, being a legal resident of the state of Florida. The state demurred to this plea upon the ground, among others, that it fails to aver that the grand jurors who found the indictment were not drawn by officers designated by law to draw the same. The court sustained the demurrer of the state, and this ruling presents the important question upon this appeal.

One of the qualifications of a juror, whether grand or petit, is that he should be a resident of the county where he is summoned to serve. Amos v. State, 96 Ala. 120, 11 So. 424; Acts 1909, p. 305. In Godau v. State, 179 Ala. 27, 60 So. 908, the court said:

"Only citizens are qualified to serve as jurors in this state, and the trial court properly held that Lester Bodden, a British subject, was not competent to serve as a juror on the defendant's jury."

The nonresident grand juror was therefore not a qualified grand juror, and, as pointed out in Nixon v. State, 68 Ala. 535, there can be no rule of limitation in such an important matter which can stand the test of logical soundness short of total exclusion.

If the courts are to permit one nonresident of the state to serve on the grand jury, then under the same rule the courts must of necessity permit a greater number. It is not the vote alone, but the influence of the grand juror, which must be taken into consideration. If a nonresident of Alabama, though a resident of another state, may participate in the deliberation of the grand jury of Geneva county, the same rule of reasoning would permit a subject of a foreign country to also serve, and, if permitting one, then a greater number should be allowed, and the constitutional and statutory safeguards thrown around the citizens would be thus undermined. As the weight of the influence of such illegal grand juror cannot be estimated, and as his participation in the deliberation was violative of the constitutional and statutory safeguards of the defendant, the doctrine of error without injury cannot save the cause from reversal. The case of Kuykendall v. State, 16 Ala. App. 197, 76 So. 487, by the Court of Appeals, bears close analogy in support of this conclusion.

The provisions of section 23, Acts 1909, p. 315, limiting the grounds for objection to the formation of a grand jury, were not intended to foreclose a question of so mandatory character as that here presented. Zininam v. State, 186 Ala. 9, 65 So. 56; Jackson v. State, 171 Ala. 38, 55 So. 118.

I respectfully dissent.

THOMAS, J., concurs in the foregoing views.