Dean v. State , 100 Ala. 102 ( 1893 )

STONE, C. J.

The statute—“To regulate the trial of misdemeanors in Shelby county, Alabama,” approved February 12,1891—Sess. Acts 580—and the amendatory statute approved February 21, 1892—Sess. Acts 826—each of them, is coustitutional. The latter is an amendment and repeal of the former. 3 Brick. Dig. 132, §§ 82, 83, 84, 85; Ib. 750, §§ 46, 49; Connelly v. State, 60 Ala. 89; Cawthorn v. State, 63 Ala. 157; Ex parte Merlet, 71 Ala. 371. It results that there was no merit in the attempted defense to the jurisdiction, nor in the motion to strike the case from the docket.

Nor is there merit in the d'emurrer to the indictment. It strictly conforms to the statute. Code of 1886 § 4038.

In having summoned, and in organizing Jury No. 2, the County Court erred. There is no authority in the statute for such proceeding. The statute clearly contemplates that there shall be but one regular jury at each term of the court. The challenge of jurors because they were so summoned and organized ought to have prevailed. We would not doubt, however, that tbe County Court has authority to summon talesmen, whenever, from any cause, it becomes necessary to supply the places of jurors that may be challenged, or, who may fail to appear. All we decide is, that the statute makes provision for only one jury. If this leads to delay, or to inconvenience, the fault is in the statute.

Eeversed and remanded.