Edson v. State , 134 Ala. 50 ( 1901 )

TYSON, J.

A cursory comparison of the act approved February 21, 1887, (Acts, 1886-87,'p. 190) with the act approved March 2, 1901, (Acts, 1900-1901, p. 1994), will show that they cannot and were not intended to be operative alt the same time. Both of them relate to and deal with the same subject matter and some of their provisions are directly in conflict. Manifestly the purpose of the latter was to take from the board of revenue, constituting the board of jury commissioners, the power and authority conferred upon them by the former, and to confer that power, and authority upon a board composed of the judge and associate judge of the city court, tbe probate judge, sheriff and clerk of the circuit court of the county. It is entirey clear from the general policy of the two acts, gathered from the purposes and objects sought to- be attained, that it was not the intention of the legisature to have two legal jury boxes for the county at one and the same time — one prepared by the board of revenue as a board of jnry commissioners, and the other by the judges of the city court, judge of probate, sheriff and clerk, to say nothing of the conflicting provisions of the two and the confusion that would follow if such were the case. The fact that the law malcers, immediately following the repealing clause in the later act, made provision for the legality of juries drawn by the board of revenue for the year 1901, clearly evinces that they understood that the later act repealed the former. Furthermore, the last act is an affirmative statute revising the entire subject matter of the former and was evidently intended as a substitute for it. This being true, it had the effect of repealing the former, although containing no express words to that effect. — 3 Brick Dig. 750, § 49.

On the trial of this defendant, a jury was not obtained from those persons, who were upon the venire summoned and appearing. It, therefore, became the duty of the presiding judge, under section 10 of the act approved March 2, 1901, to draw from the jury box a sufficient number1 of names to complete the jury. Against the objection of defendant, the judge drew the names to complete the jury from the box prepared by the board of revenue and not from the box prepared by the board of jury commissioners .under the act of 1901. In this there was error. The defendant was' entitled to have the names drawn from the. legal jury box, and the action of the. court in drawing them from another box was clearly violative of the provisions of the act and can no more be upheld than could his directions to the sheriff, had he given it, to summon a sufficient number of persons to complete the jury from the citizenship of the county, or had he drawn the names from the legal box before the venire was exhausted, or for that matter, any other disobedience of the mandate of the statute.— Ezell v. The State, 102 Ala. 101; Linehan v. The State, 113 Ala. 70.

There is no merit in those grounds of the motion to quash the indictment predicated upon the appointment of Richardson by the court to' act in the solicitor’s place. — Code, § 5522. No evidence was offered in support of the other grounds. For this reason, if for no other, they were properly overruled.

For the error pointed out the judgment of conviction must be reversed and the cause remanded.