Germolgez v. State

COLEMAN, J. The defendant was indicted for retailing spiritous liquors without a license. The defendant filed a plea in abatement, going to the formation of a grand jury which presented the indictment. In writing up the record of the organization of the grand jury, and of those summoned and not attending, the clerk wrote in one place W. J. Free, instead of W. J. Firee, and in another place J. I. Taylor instead of J. I. Hagler. The minutes of the court themselves furnish abundant evidence of the regular formation of the grand jury, and that, these were mere clerical errors of the clerk of the court in transcribing the names of the jurors who had been regularly drawn and summoned by the sheriff, as shown by his return into the court, all of which is of record.—Tanner v. State, 92 Ala. 1, and authorities there cited. Section 4AA5 of the Code of 1886 declares, 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 [218] 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 were not drawn in the presence of the officers designated by law,” &c. This section has been frequently considered by this court and judicially construed before its adoption into the present Code. In the case of Billingslea v. The State, 68 Ala. 486, it was said: “There are but two classes of cases in which-objections can be sustained to an indictment, when they are based on irregularities in the organization of a grand jury. First, where such jurors were not drawn in the presence of the officer designated by law. Second, where there is some order of the court below, or some action of the presiding judge,, appearing of record in the cause, and relating to the organization of the grand jury, which is without warrant in the statute, or is contrary to its provisions. This embraces some judicial order or act of the court, as contra-distinguished from any act of its officers, while ministerially executing any such order when lawfully made.” The second ground of objection is, that the court made no order discharging those who failed to appear, but supplied their places without first making an order discharging them. The objection is without merit, under the principles decided in Billingslea v. The State, supra; Crim. Code, page 133, § 9 of Act. The other objection to the indictment, viz., that it was indorsed B. M. Blevins, foreman, instead of Bichard M. Blevins, and that the solicitor endorsed the names of other witnesses on the indictment after it was returned into court, are wholly destitute of merit. The objection to the introduction of testimony on the trial is equally untenable.—O'Brien v. The State, 91 Ala. 25. Affirmed.