Opinion
4 Div. 762.
November 15, 1934.
Appeal from Circuit Court, Geneva County; Emmet S. Thigpen, Judge.
E. C. Boswell, of Geneva, for appellant.
In capital cases, the record must show compliance with the statutory requirements as to the venire and grand jury. Code 1923, § 8644; Roan v. State, 225 Ala. 428, 143 So. 454; Williams v. State, 22 Ala. App. 262, 114 So. 567; Hanners v. State, 17 Ala. App. 597, 88 So. 55; McMullen v. State, 17 Ala. App. 504, 86 So. 175; Whitley v. State, 166 Ala. 42, 52 So. 203; Bilbo v. State, 1 Ala. App. 74, 55 So. 927; Banks v. State, 13 Ala. App. 41, 69 So. 242; Wilson v. State, 128 Ala. 17, 29 So. 569; Coburn v. State, 151 Ala. 100, 44 So. 58, 15 Ann. Cas. 249; Collins v. State, 3 Ala. App. 64, 58 So. 80. Defendant's motion for a mistrial should have been granted. It is shown a witness, called by the state, had given an interview with respect to the facts in the case and that some of the jurors read the article in the newspaper. Leith v. State, 206 Ala. 439, 90 So. 687; Lowery v. State, 23 Ala. App. 191, 122 So. 603; Arrington v. State, 23 Ala. App. 201, 123 So. 99; Roan v. State, supra.
Thos. E. Knight, Jr., Atty. Gen., for the State.
Brief did not reach the Reporter.
Jack Curtis was indicted, tried, and convicted of murder in the first degree and his punishment fixed at life imprisonment.
The appeal is on the record only, without a bill of exceptions.
The record filed in this court shows proceedings, regular in all respects, essential to jurisdiction, and a final judgment of conviction and sentence, except those which, by section 3249 of the Code of 1923, are to be omitted, unless some question thereon was raised in the trial court. The organization of the grand jury is one of the essential proceedings of record in the lower court, but unless some question is raised thereon in the trial court, such proceeding, on appeal, is presumed regular and legal. Code, § 3249; Scott v. State, 228 Ala. 509, 154 So. 113.
The record sets out a motion styled a motion for mistrial, but, being filed and overruled the day before the trial was entered upon, should be treated as a motion for a continuance on the ground of alleged misconduct of a state witness while under rule as a witness in the trial of another defendant under the same indictment. Such alleged misconduct was in publicly discussing the case, and causing a newspaper publication to this defendant's prejudice, etc.
Manifestly, the mere setting out of the motion and ruling thereon in the record proper, presents no question for review in this regard.
A bill of exceptions showing evidence offered pro and con on the hearing of the motion, some ruling disclosing abuse of discretion in putting the accused to trial, is the method of presenting such matters for review.
No error appearing in the record, the judgment is affirmed.
Affirmed.
ANDERSON, C. J., and GARDNER and FOSTER, JJ., concur.