TaiLexi AI U.S. Case Law

Osborn v. State

Osborn v. State, 45 So. 666 (Ala. 1908)
Download
Format
Include

Star paging (*137) is kept for pin cites.

Court
Supreme Court of Alabama · State Highest Courts
Decided
February 6, 1908
Judges
Anderson, Dowdell, McClellan, Tyson
Citations
45 So. 666154 Ala. 441908 Ala. LEXIS 538
Disposition
Reversed and remanded.
Headnotes
Murder. 1. Grand Jury; Organization; Increasing Number on Account of Disqualification. — The Grand jury was regularly organized with fifteen members, and after organization one was excused on account of disqualification, whereupon, the court proceeded to summon a person to take the place of the grand juror excused. Held, that unless the number was reduced below thirteen the court was without power to increase the number or supply the place of a juror-excused, and that a panel of more than thirteen was illegally organized where a juror was substituted for one excused. 2. Indictment; Invalidity; liffect. — An indictment found' by a grand jury while an unauthorized person was serving thereon is void, and is not saved by the provisions of section 5269, Code 1896.
Summary
Appeal from St. Clair Circuit Court. Heard before Hon. A. H. Alston. Ed Osborn was convicted of murder in -the second degree and sentenced to ten years in the penitentiary, and he appeals. The record shows such fatal irregularities in the organization of the grand jury that the indictment will not sustain the conviction in the court below. — Nordan v. The State, 148 Ala. 18; Peters n. The State, 98 Ala. 38; Finley v. The State, 61 Ala. 201; Gross v. The State, 63 Ala. 40; Fryer v. The State, 41 South. 172; O’Byrne v. The State, 51 Ala. 25.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Anderson

Text extracted by OCR from a scanned original; check the original for exact wording.

ANDERSON, J.

The grand jury contained 15 members, having been legally organized under section 5023 of the Code of 1896. ' When they appeared in court, and the foreman, J. L. Forman, was excused because of disqualification under section 5042, there were 14 grand jurors remaining, and the cburt erred in increasing the number to 15, and J. W. Allen was improperly added thereto. Not being a legal member of the grand jury, Indictments found and returned by said body while he was serving were void, and cannot support a conviction. After a grand jury has been once legally organized, and the number is subsequently reduced, the law does not authorize an increase unless the number is reduced below 13. Section 5044 of the Code of 1896.

The curative effect of section 5269 of the Code of 1896 cannot save the indictment in the case at bar, which, being void, will not support a judgment of conviction.— Nordan v. State, 143 Ala. 13 , 39 South. 406 , and cases there cited.

The judgment of the circuit court, is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, O. J., and Dowdell and McClellan, JJ., concur.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1911: 31913: 31929: 11948: 119112026peak 1911 · 3

Relies on it most ⓘ

  1. Hafley v. State62 So. 319 (Ala. Ct. App. 1913)
  2. Ex parte Lawler64 So. 102 (Ala. 1913)
  3. Doss v. State123 So. 237 (Ala. Ct. App. 1929)
  4. Smith v. State38 So. 2d 341 (Ala. Ct. App. 1948)
  5. Spivey v. State56 So. 232 (Ala. 1911)
  6. Wilson v. State54 So. 572 (Ala. 1911)

Most recent

  1. Smith v. State38 So. 2d 341 (Ala. Ct. App. 1948)
  2. Doss v. State123 So. 237 (Ala. Ct. App. 1929)
  3. Ex parte Lawler64 So. 102 (Ala. 1913)
  4. Yeager v. State62 So. 318 (Ala. Ct. App. 1913)
  5. Hafley v. State62 So. 319 (Ala. Ct. App. 1913)
  6. Mathes v. State57 So. 390 (Ala. Ct. App. 1911)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 1

DepthCaseCited by
Nordan v. State, 143 Ala. 13 (1904) 38

Keyboard shortcuts

/Focus the search box
j kNext / previous result
EnterOpen the selected result
xAdd / remove the selected result from the download list
n pNext / previous search term in a case
cCopy the citation of the current case
+ −Larger / smaller reading text
?Show this list