The opinion
RICE, J.
(concurring). I concur in the reversal of the judgment of conviction in this case, but for the sole reason that I think the trial court was in error in giving the general apirmative charge in favor of the state. Very briefly (as the necessity seems to me to impel) I will state my views:
The conviction of appellant, as I read the record, rested alone, in its last analysis, on the testimony of the two state’s witnesses Hughes and Tidwell. There seems no contention, worthy of notice, that Tidwell was
not
an accomplice. In fact, the testimony shows that he
was,
beyond question.
As to the witness Hughes, I take, literally, from the excellent brief of appellant’s able counsel, filed on this appeal, what the undisputed testimony in the case shows as to his complicity in the crime charged against appellant. It is, quoting from the said brief, that:
“(1) Hughes and Tidwell were each members of the Tarrant City Klan; Tidwell belonged to the Klavaliers.
“(2) Both of them voluntarily went to Antioch Church,
mashed and robed,
with the other Klansmen from Tarrant City and Oneonta; Hughes drove his car; Tidwell went in L. A. Clayton’s car.
“(3) Hughes voluntarily "sat on the steps of the church during the service; Tidwell went into the church and sat down behind the preacher during the service.
“(4) Calloway was taken into custody at the church and placed in the L. A. Clayton car, which started to leave, and Tidwell caught the Clayton car when it was leaving the church and rode the running board. Hughes loaded up the car with the parties, including the defendant, that he carried to the church, and followed the Clayton car Calloway was in, Hughes driving, to the place in Jefferson county where Calloway was whipped. Both of them knew that the man in the Clayton car had some one in custody all the time. It was stated they were going to take him to the sheriff in Oneonta for being drunk and disorderly, but no attempt was made to stop in Oneonta.
(5) When the Clayton car stopped in Jefferson county, Hughes stopped his car some 10 or 15 feet behind it and cut off his lights. In answer to a question by some one in the Clayton car as to ‘who is back there,’ the response from the men in the Hughes car was: ‘We have all got green capes except Hughes,
and we are not afraid of him.’
The two cars went on about a mile and stopped; when the two cars stopped, Hughes and Clayton remained with the cars, and every one else, including Tidwell, went into the woods with Calloway, where he was whipped.
“(6) Hughes claims that while the other members of the party were in the woods whipping Calloway, he voluntarily took an oath to keep the thing secret until death.
“(7) That the parties then loaded up in the two cars and started for home. Tidwell rode in Clayton’s car and Hughes drove the folks in his ear to Tarrant City and let them out and then drove to his home in Mt. Pinson and went to bed.
“(8) That about July 15th Hughes and Tidwell were brought before the Attorney General for examination in Birmingham, and at that time were fully sworn and each of them, under oath, denied that they had ever made the trip to Antioch Church on June 26th. They denied knowing anything about the whipping. Hughes swore that he was at his mother’s; Tidwell swore that he was asleep
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at Tarrant City and that he could prove it by his brother.
“(9) They continued to conceal and suppress their alleged knowledge of this occurrence and made no report of the affair to any officer until they were scared or frightened • or intimidated into telling it to the Attorney "General.”
On these facts, the situation was, I think, similar to that that existed in the case of Horn v. State, 15 Ala. App. 213 , 72 So. 768 , where Judge Evans said: “Where there is doubt whether a witness is in fact an accomplice, and the testimony is susceptible of different inferences on that point, such question is for the jury, and not the Court.”
By giving the general affirmative charge in favor of the state — there being no testimony corroborating, in the essential respects, that of Tidwell, other than the testimony of Hughes — the trial court, in effect, found as a matter of law that Hughes was
not
an accomplice. This since admittedly the appellant could not be convicted on the uncorroborated testimony of an accomplice (instantly, Tidwell). Code 1923, § 5635.
As above pointed out, I do not think the evidence warranted the court in taking this action, and its doing so was error that must cause the judgment of conviction to be reversed. Horn v. State, supra.
I concur in neither of the opinions prepared by my associates, except as to the result, and that, for the reason above set out. If, under proper instructions, the jury had found that Hughes was
not
an accomplice, the state, it seems to me, would have been entitled to a verdict of guilt upon the uneontradicted testimony. This would have rendered harmless practically all those matters complained of on this appeal. On such matters as to which this would
not
be true, I have this to say:
Appellant’s plea in abatement was as follows’:
“In the Circuit Court of Blount County, Ala.
“The State of Alabama v. Eugene Doss, Defendant.
“Comes the defendant in the above styled cause, specially and for special plea in abatement to the indictment in said cause says, that the indictment returned against him in this case should be abated because the Grand Jury that returned said indictment was not drawn and empannelled as required by law, but to the contrary was what is corpmonly called ‘stacked,’ that is to say, the cards containing the names of the Jurors in attendance on Court that week were not placed in a hat or box and the names indiscriminately drawn therefrom, but to the contrary the names of the jurors attending Court that week from which the Grand Jury was drawn which returned this indictment were all stacked up in one stack and the first eighteen names on the stack were selected by the Judge presiding as the Grand Jury empannelled which returned the indictment in this ease. Horace C. Wilkinson, J. R. McElroy, P. A. Nash and A. A. Griffith, Attorneys for Defendants.
“State of Alabama, Blount County.
“Personally appeared before, the undersigned authority in and for said county, in said State, Eugene Doss, who being duly sworn, deposes and says that the facts set out in the foregoing plea are true.
“Eugene Doss.
“Subscribed and sworn to before me this 1st day of Aug., 1927.
“P. A. Nash, Notary Public.”
Alabama Code 1923, § 8630, is in the following language:
“Objections to Indictments; Sow Tahen.—
No objection to an indictment on any ground going to the formation of the grand jury which found the same can be taken to the indictment, except by plea in abatement to the indictment; and no objection can be taken to an indictment by plea in abatement
except upon the ground that the grand jurors who found the indictment were not drawn by the officer designated by lata to draw the same;
and neither this objection, nor any other, can be taken to the formation of a special grand jury summoned by the direction of the court. (Italics ours.)
The state’s demurrers to the appellant’s plea in abatement, as set out in the opinion prepared by Presiding Judge BBICKEN, were sustained. I think, properly so. The plea does not set forth, in my opinion, the
only
ground of objection which by the Code section just set out is permissible. See citations following Code, § 8630, in the Code of 1923.
I am not unaware of the force of the reasoning in the opinion by the presiding judge, in this case, but I do not believe it was the intention of the Legislature in enacting the provisions of Code, section 8630, supra, to allow an objection of the sort stated in appellant’s plea in abatement to be taken to an indictment apparently regularly found and returned into court by a grand jury drawn and impaneled by the officer designated by law to perform that action. It is true that Code 1923, § 8622, provides that the names of grand jurors shall be drawn from a “hat or box,” and that Code 1923, § 8616, perhaps pertinent, provides that there shall be “no selection oí names”; but in the appellant’s plea above there is no fraud alleged, and for aught that appears it could be possible that no “hat or box” was available. I do not think the allegations set up show a “selection of names” in the sense intended by Code, § 8616, supra. At any rate, it is my opinion that the state’s demurrers were properly sustained to said plea.
Count 1 of the indictment, under which (and under which alone) appellant was convicted, literally follows form No. 68 provided by section 4556 of the Code of 1923 for the offense charged.
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, The Supreme Court, whose decisions we are required to follow, in a case where this exact situation obtained with reference to an indictment, duly challenged, as here, by demurrer, has said: “This was sufficient, and the court did not err in overruling the demurrer to it.” Code 1923, § 4527; Malloy v. State, 209 Ala. 219 , 96 So. 57 .
The facts shown by the undisputed testimony in the case, as summarized in the opinion prepared by BRICKEN, P. J., in my opinion, technically, at least, constituted the offense known to our law as “kidnapping.” Code 1923, § 3189.