Opinion
8 Div. 497.
June 9, 1959. Rehearing Denied June 30, 1959.
Appeal from the Circuit Court, Lauderdale County, Robert M. Hill, J.
Bradshaw Barnett, Florence, for appellant.
Cases may arise in which the irregularity in the formation of the Grand Jury is not known until after the plea of not guilty has been interposed. In such cases, on a proper application seasonably made, it may be the duty of the court to permit the plea of not guilty to be withdrawn and a plea in abatement filed. Crawford v. State, 112 Ala. 1, 21 So. 214; Russell v. State, 33 Ala. 366; Nixon v. State, 68 Ala. 535; Smith v. State, 32 Ala. App. 206, 23 So.2d 515; Id., 247 Ala. 182, 23 So.2d 516; Code 1940, Tit. 15, § 279. It is true that the statutes limit objection to an indictment to the sole ground that the jurors were not drawn in the presence of the officers designated by law. However, said statutes were not designed to nullify matters deemed essential to the established concept of trial by jury which offend the basic principles of due process. Code, Tit. 15, §§ 278, 285; Whitehead v. State, 206 Ala. 288, 90 So. 351; Troup v. State, 32 Ala. App. 309, 26 So.2d 611. The charge in the indictment in this case is a felony and to allow the indictment in this case to stand would deprive the appellant of the rights guaranteed to him under § 6, of Article 1 of the Constitution of Alabama, 1901, in that he would be deprived of life or liberty without due process of law in that no indictment has been returned in this cause conforming to due process. Whitehead v. State, supra; Rush v. State, 253 Ala. 537, 45 So.2d 761. The improper remark of the solicitor for the State of Alabama that, "We would like to excuse all the witnesses called as character witnesses.", created an ineradicable prejudice and bias against the defendant and was so prejudicial and injurious as to render a fair and impartial trial a matter of grave doubt. Cassemus v. State, 16 Ala. App. 61, 75 So. 267; Mitchell v. State, 28 Ala. App. 119, 180 So. 119; Lowery v. State, 21 Ala. App. 352, 108 So. 351; Humphries v. State, 38 Ala. App. 388, 84 So.2d 669; Code, Tit. 15, § 305.
MacDonald Gallion, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.
The refusal of the trial court to allow the accused to withdraw his plea of "not guilty" was not an abuse of discretion. Walters v. State, 39 Ala. App. 50, 93 So.2d 528; Whittle v. State, 205 Ala. 639, 89 So. 43; Smith v. State, 32 Ala. App. 206, 23 So.2d 515; Id., 247 Ala. 182, 23 So.2d 516. A plea in abatement to an indictment is properly stricken on motion where such plea does not allege that the grand jurors were not drawn by the officer designated by law. Whitehead v. State, 206 Ala. 288, 90 So. 351; Payne v. State, 261 Ala. 397, 74 So.2d 630; Green v. State, 38 Ala. App. 189, 79 So.2d 555; Code 1940, Tit. 15, §§ 278, 285. A motion to quash an indictment is not the proper method of raising a question respecting the formation of a. grand jury. Wimbush v. State, 237 Ala. 153, 186 So. 145, 146; Barnett v. State, 27 Ala. App. 588, 176 So. 834. Where the trial court sustains an objection to a comment made by the solicitor, a mistrial is not warranted unless such comment is so prejudicial that it cannot be eradicated from the minds of the jury. Freeman v. State, 37 Ala. App. 623, 74 So.2d 513; Id., 261 Ala. 697, 74 So.2d 520; Willingham v. State, 261 Ala. 454, 74 So.2d 241.
This is an appeal from a conviction of transporting five gallons or more of prohibited beverages bearing a sentence of five years' imprisonment.
About seven o'clock in the morning, August 23, 1958, two highway patrolmen were checking drivers' licenses. Mr. M.M. Gibson, one of the officers, was holding Newsome's license when he saw some cans behind the front seat of Newsome's Cadillac car.
Gibson opened the cans and found wildcat whiskey. As a witness, he told the jury how full each can was. There were two five gallon "O. D. Army Jacket" metal water cans.
Newsome drove off: his passenger threw out the cans and a glass jug. Mr. D.O. Dodd, the other highway patrolman, chased Newsome some twenty miles before Newsome got away. He was arrested later and when questioned at the county jail repeated, "No comment."
The defense put in no evidence.
Newsome was indicted October 2, 1958, and on his arraignment on October 7 he pled not guilty.
The case was reached for trial on December 4 at which time defense counsel asked leave to withdraw the plea to the merits and consider a motion to quash and a plea in abatement based on one of the grand juror's not being a freeholder or householder of Lauderdale County for the twelve months last past when he was sworn. See Troup v. State, 32 Ala. App. 309, 26 So.2d 611.
The trial judge sustained the State's motion to strike these requests. In so doing, he was exercising an irrevisable discretion. For, while he may allow a plea to a defect to be taken up out of order, Ex parte State ex rel. Lawson, 237 Ala. 591, 188 So. 242, Code 1940, T. 15, § 279, he may also, without error, reject the request to withdraw the plea of not guilty, Holloway v. State, 37 Ala. App. 96, 64 So.2d 115, McGee, Crim.Proc. in Alabama, 122-123.
This court cannot — as appellant would have us do — declare that Code 1940, T. 15, §§ 278 and 279, as applied here, denies him constitutional rights, i. e., trial only upon "indictment" for a felony and due process.
The fact that a Floridian may participate in an Alabama grand jury, as happened in Whitehead v. State, 206 Ala. 288, 90 So. 351, may seem astonishing, but this is a statute bound court and hence cannot go into the merits of Supreme Court opinions, Code 1940, T. 13, § 95.
Upon the announcement that the defense rested — no evidence having been offered by Newsome — the solicitor stated, in effect, that "all the witnesses called as character witnesses" might be excused. Newsome claims error in the announcement.
The direction seems, on this record, to have been addressed to a group marshalled by the State to be ready to rebut an anticipated display of Newsome's good name in his home community.
If there were any harm in this remark, this was cured by the trial judge sustaining the defense objection. That he did not grant a mistrial therefor, we think proper.
Lowery v. State, 21 Ala. App. 352, 108 So. 351, a case of comment on the failure to put friends on the witness stand, does not fit here as we see the record.
The defendant further argues that, in effect, the solicitor's statement by excusing character witnesses has silhouetted Newsome's failure to testify as much so as if he had said, "* * * the defendant is not going to testify and put his character in issue."
We respectfully differ with this proposition. It attaches too much weight to what the solicitor didn't say. We think even a juror sophisticated to the point of being learned in the law (if this is not a self-contradictory expression) would not draw such a refined inference.
We have examined the record, as required by the statute, and find it free of error.
Affirmed.