Osborn v. State

45 So. 666, 154 Ala. 44, 1908 Ala. LEXIS 538

• Court: Supreme Court of Alabama
• Decided: February 6, 1908
• Status: Published

Opinion

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.