
    Yeager v. The State.
    
      Violating Prohibition Lmo.
    
    (Decided April 15, 1913.
    62 South. 318.)
    1. Grané Jury; Organization; Supplying Place. — Where the grand jury was organized with eighteen members, which was authorized but not required by law, the withdrawal or excusing of one of its members, did not render it an illegal body, and it was error to supply the place of the grand jurror withdrawing.
    2. Same. — The unauthorized addition of a member to fill a vacancy in a grand jury already possessing the membership required by law, is not cured by the provisions of section 7572, Code 1907, nor by the provisions of section 23, Acts 1909, p. 315.
    Appeal from Morgan Law and Equity Court.
    Heard before Hon. Thomas W. Wert.
    Ed Yeager was convicted of violating the prohibition law, and he appeals.
    Reversed and remanded.
    Tennis Tidwell, for appellant.
    The defendant’s plea in abatement to the indictment was good, and not subject to be striken oil motion. — Sunflower Go. v. Turner, 158 Ala. 191; G. of Ga. v. Sims, 53 South. 826. The plea presented a good defense, as the action of the court was illegal. — Osborn v. State, 45 South. 666; Spivey v. State, 56 South. 232; Thayer v. State, 35 South. 406. What has been said relative to the plea in abatement applies with' equal force to the motion to quash. — Patterson v. Slate, 54 South. 696, and authorities supra. Counsel discuss other assignments of error, hut in view of the opinion, it is not deemed necessary to here set them out.
    R. C. Brickell, Attorney General, and W. L. Martin, Assistant Attorney General, for the State.
    No objection can be taken to the formation of a special grand jury summoned by direction of tbe court. — Sec. 23, Acts, 1909, p. 315. Tbe order for tbe special grand jury was authorized by tbe act creating tbis court. Tbe plea in abatement was properly stricken. — Sec. 7572, Code 1907.
   WALKER, P. J.

— Tbe objection to tbe indictment, first by plea in abatement, and then, when that was stricken, by motion to quash, was based upon tbe action of tbe court in adding a member to tbe grand jury to take tbe place of an original member of it wbo bad been excused, tbougb tbe withdrawal of such original member bad not reduced tbe membership of tbe body below tbe number required by law.

It was decided in tbe case of Patterson v. State, 171 Ala. 2, 54 South. 696, that tbe present jury law (Acts Sp. Sess. 1909, p. 305) did not repeal or supersede tbe provision of section 7282 of tbe Code, under which a grand jury of 15 members may be organized. Tbe grand jury now in question was organized with 18 members, as is authorized, but not required, by tbe present law. Tbe withdrawal of one of those members left tbe body still a legal grand jury. We must treat it as settled that after a grand jury has once been legally organized, and tbe number is subsequently reduced, tbe law does not authorize an increase unless tbe number is reduced below that required by law. — Osborn v. State, 154 Ala. 44, 45 South. 666; Nordan v. State, 143 Ala. 13, 39 South. 406; Code, §§ 7283, 7305.

It was expressly decided in tbe two cases just cited that tbe unauthorized addition of a member to tbe grand jury already possessing tbe membership required by law is not within tbe influence of tbe curative provisions of section 7572 of tbe Code, and has tbe effect of invalidating an indictment found by tbe body so added to. There is nothing in the modification of the terms of that provision made by section 23 of the present jury law to warrant a different conclusion. Following the former rulings refered to, it must he held that the court was in error in overruling the defendant’s motion to quash the indictment.

Reversed and remanded.  