The Birmingham age-herald., 1920-10-10
OFFERS SOME LEGAL
 ASPECTS OF GRAND
 JURY'S RECENT ACT
Points Out That Body Assumes to Be Trial Court, Judge, Jury and Prosecut-
 ing Attorney

The following legal aspects of the re-
 cent grand jury action in connection
 with President Gwin of the board of revenue have been prepared by mem-
 ber of the Birmingham bar, who states
 that he is not even personally acquainted with MT Gwin:
 l "On the subject of the recent report
 of the grand jury, coldemning certain l alleged acts of Jerry Gwin i'll his of l icial capacity as a member of the board ] of revenue, and demanding his resigna- | ton, l herewith present the disnterested views of a lawyer
 "In the case of Notes vs. Bates. 30 ] Alabama, 3S2, the supreme court of this state had the following to say concern- l ing an indictment by the grand jury: The finding of an indictment is an ex parte proceeding, conducted with closed doors and it's privacy secured by solemn oath. While an indictme It is an ac- cusation in writing, charging person with an indictable offense presented by
 a competent part of the cour-; though 1t is a judicial affirmation, that the eVl- dence before the grand jury is sufficient to put him on trial before petit Jury' it is an accusation and affirmation found ed on such evidence as the prosecuting
 officer, the grand jury, the prosecutor if any, may see proper to select and ad- duce; and it is omportant to impair on
 the trial of the accused, the pre3ump- ton of innocence. The person charsed
 is not permitted to be present, has no
 opportunity of being heard, can bring no
 evidence, and cannot cross-examine the
 witnesses produced And the supdeme
 court held in this case that in a ciVli
 suft far malicious prosecution the tact
 that the plaintiff has been indicted by
 a grand jury of the criminal onense, dld
 not constitute prima facie evidence that
 the prosecutor, the defendant Tn the civil suit, had probable canse for oeheV-
 ing the plaintiff to fe gui''y or the crime for which the gra Id jury indicted him. |,
 ..It is therefore pointed out that all
 the allegations contained in the report
 of the grand jury are not Judlclaiiy ae- termined facts; indeed as the supreme court has said. they do not even COT
 stitute prima facie evidence ot the mat ters alleged in the report of the grand i,,rv That a grave injustice may not ha dnne inc voters of this county should fully understand the weight to Which the report of the grand jury is entitled. The political opponents of MT. Gwin ap- near to be citing the report as nnolhe of facts against him.
 "The indictment of a man by the grand iurv for a criminal offense is supstan tially analogous to the commencehent by that body of impeachmeht proceeu- ings aeainst a public official. Before conviction or an impeachment may De had the accused must be given fa'r trial before a competent court. comDosed os an impartial judge and Jury, oelore which the defendant has the right 10 appear and be heard and to present whatever defense he may have to oHer Such rights are fundamntal aSu are guaranteed -by our constitution. The erand jury cannot convict and pass sen tence on a man. TnS the opinion of the | writer. the recent report of the grand | jury is subject to the most severe crit icism for demanding the resignation of Jerry Gwin. By such action It mas III effect not only acted as a grand jury | but also has ustrped the functions of l the trial court jury and prosecuting at | tornev and has presumed to try. convict l and pass sentence of political executlot l on Jerry Gwin without having given him | an opportunity to he present at his trlal l and be heard in his own defense. The excuse given by the grand jury for this l unwarranted demand was that the pres | ent term or OHlCe Ol jerry 1Whi "ouio | expire before trial for impeachment | could be had. Would it accord with your | idea of justice if the grand jury, be- lieving man to be guilty of murder, | were to hang him forthwith because they l thought he would die iron, natural | causes before he could be tried in the | manner prescribed by law? There can be no valid excuse for denying a fair i trial either to one accused of any of | fense or to a public official charged with , incompetency.
 "T hold no brief for Jerry Gwin and ! certainly think that the grand jury | should have commenced impeachment l proceedings against him, based the | evidence which it had before it. But MT. ! Gwin has not yet been heard. and it ap- l pears to me that the report of the grand , jury is being most unfairly used against l him. He should either be impeached aft | CT fair trial or every democrat should ! vote for him in November.