majority">STONE, J. —

It is contended by counsel for appellant, that under the act “ To establish a Court of Quarter Sessions for Perry county,” approved February 23d, 1876 [see Pamphlet Acts, 371], no legal grand jury can be drawn or impannelled. The reason assigned, for this is, that because the act creating the court, in section 9, declares, “ that there shall be drawn and summoned for said court, by the officers required by law to summon jurors, a grand jury,” &c., and then provides that, at the November term, which is required to be held at Uniontown, the grand jury drawn for such term shall be selected from persons residing in that beat, having the requisite qualifications to serve as grand jurors, and exempts all such persons, so residing in Uniontown beat, “ from service as grand jurors at the terms of said court held at Marion,” that this renders it impossible to draw and summon a grand jury according to the provisions of the Revised Code, sections 4062 et seq. It is contended, that the statute is imperfect, and that no lawful grand jury can be organized under it. If this be so, it would follow, that any indictment, found by such body of persons, would be void, and the objection could be taken at any stage of the proceedings; even here, for the first time. — Harrington v. The State, 36 Ala. 237.

. We can not perceive, however, that the alleged imperfection^ exists. The general law (Rev. Code, §§4062 to 4073, inclusive) furnishes full directions for drawing and summoning jurors; and sections 4080 et seq. direct how the grand jury shall be organized. These sections designate “the officers required by law,” to perform the service of selecting, drawing and summoning jurors. The fact that the persons having, the requisite qualifications to serve as grand jurors, are divided into two classes — namely, those “residing in Union-town beat,” and those not residing in that beat — opposes no insurmountable barrier to the performance of such service. It may render it necessary to have two boxes, in which to deposit the names of the persons selected; or, when the drawing takes place, of laying aside the names of such persons as are not eligible for the particular session of the court. It requires no greater departure from the general routine; and this, we think, the designated officers were authorized to do.

The objection, that the statute uses the word summon, instead of the words select, draw, and summon, is too technical, and can not prevail. The latter was evidently the meaning of the legislature. Moreover, this objection, if valid, can not *187be raised in tbis form, or in tbis court for tbe first time.— Rev. Code, §§ 4087, 4187, 4188; Floyd v. State, 30 Ala. 511; Russell v. State, 83 Ala. 366; Harrington v. State, supra.

3. Tbe indictment in tbis case very clearly and explicitly sets forth a misdemeanor. — Rev. Code, § 4112. It negatives tbe right to shackle tbe convict, by averring that it was done by tbe defendant “ without having an order, either of tbe court trying tbe offender, or of tbe Court of County Commissioners ” therefor. Tbe indictment sets forth a case of maltreatment. — Rev. Code, § 3687. Tbe demurrers were properly overruled. If tbe defendant, to whom tbe convict was hired, maltreated him in tbe manner averred in tbe indictment, it is immaterial by what court tbe convict was sentenced, or when sentenced, or for what length of time, or for' what offense be was undergoing punishment, provided tbe court bad jurisdiction, and the term of tbe sentence was unexpired. Nor was it necessary to aver these facts, or tbe name of tbe person or officer by whom tbe convict was let to hire, nor tbe length of time be was so let. Tbe averment in tbe indictment, that tbe person alleged to have been maltreated, was “a convict, sentenced to bard labor for tbe county,” that be was hired to defendant, and that “ during tbe time of said sentence to bard labor, and during tbe time said convict was so hired to him,” be did tbe acts of maltreatment charged in tbis indictment, is sufficient to inform any person of common understanding of what was intended; and would enable tbe court, on conviction, to pronounce tbe proper judgment.— Rev. Code, § 4112. These averments would let in legal evidence of conviction and unexpired sentence of a court having competent jurisdiction, and of a letting to hire of tbe convict, by a person thereunto lawfully authorized.

There is no error in tbe record, and tbe judgment is affirmed.

Citation profile

Relationships

How this case has been treated — in progress