McCuller v. State

49 Ala. 39

• Court: Supreme Court of Alabama
• Decided: January 15, 1873
• Status: Published

Opinions

B. F. SAFFOLD, J.

— The appellant was convicted of murder in the second degree, and sentenced to the penitentiary for forty years. The transcript recites that “ among other presentments the grand jury returned the following ; ” the indictment set out.. It is objected that a sufficient return of the indictment to the court is not shown. Section 4148, Rev. Code, requires all indictments to be presented to the court by the foreman of the grand jury, in the presence of at least eleven others. The distinction between indictments and presentments is abolished, if the term “ presentments,” in the above extract quoted from the record, must be taken to mean the indictment. But it is not an improper expression of the presentation made to the court of the indictment immediately recited. The objection is not well taken. The State v. Clarkson, 3 Ala. 378; Russell v. The State, 33 Ala. 366; Mose v. The State, 35 Ala. 421.

It appears that a copy of the indictment, and a list of the jurors summoned for his trial, were served on the accused one entire day before the day appointed for his trial. The judgment entry recites the names of the petit jury, and says, “ who, being sworn well and truly the issues to try, and a true verdict to render, say upon their oaths,” &e. We do not think from this recital the clerk intended to record all of the 'oath administered to the jury. The portions of the prescribed form which are omitted are such as neither he nor the court would have forgotten, of been ignorant of. The rule is, that if it is evident the oath was not intended to be set out fully, we will presume the proper oath was administered. McNeil v. The State, January T. 1872. There is no' error in the record.

The judgment is affirmed.