The defendant was indicted for murder in the first degree, and on his trial convicted of manslaughter in the first degree, and sentenced to the penitentiary for a term of five years.
The demurrers to the defendant's plea in abatement were properly sustained. Garner v. State, 206 Ala. 56, 89 So. 69.
During the opening argument to the jury in this case, the court allowed the solicitor, over the timely objection and exception of the defendant, to make the following argument to the jury:
"Gentlemen, 18 Men, sworn as grand jurors of your county to do their duty, heard the evidence of both sides of this case, and they say to you that something should be done in this case; and it is your duty to consider that when you go to the jury room to make your verdict."
We are unwilling to say that this argument by the solicitor, an officer of the court, was not prejudicial to the defendant. We have always understood that a hearing before the grand jury was more or less exparte, and for the solicitor, who was doubtless with the grand jury when the evidence was received upon which the indictment was found and returned in this case, to state as a fact that the grand jury "heard the evidence of both sides of this case," and, when this statement was challenged, for it to go to the jury with the sanction of the trial judge, carried with it the weight of authority, and must have been prejudicial to the defendant. The case was to be tried and determined, not on the evidence adduced before the grand jury, but on the evidence submitted at the trial. The evidence before the grand jury was for the purpose of determining whether the grand jury would accuse the defendant of an indictable offense, and the evidence before the petit jury, irrespective of that before the grand jury, was as to whether the accusation had been established, by legal evidence there submitted, beyond a reasonable doubt. The indictment is not evidence of the commission of a crime, but merely a formal method of bringing the defendant before the court for trial. Section 7130 of the Code of 1907 declares:
"An indictment is an accusation in writing, presented by the grand jury of the county, charging a person with an indictable offense."
There was no call, from the 18 grand jurors that found the indictment, that "something should be done in this case," other than the call that comes from every lawabiding citizen, and that is that the defendant should have a fair trial, and, from the evidence adduced at such trial, that the jury return a true verdict, according to the evidence there adduced.
We think the trial court was in error in refusing to exclude the argument of the solicitor objected to and for this error the judgement of conviction is reversed, and the cause remanded.
Reversed and remanded. *Page 371