Stone v. State , 137 Ala. 1 ( 1902 )

McOLELLAN, C. J.

There is no merit in the contention of the appellant that the act of February 11, 1891, “To amend an act entitled an act ‘to expedite the trial of capital cases in Jefferson county’,” is unconstitutional. The contention appears to be rested upon two considerations, Adz., first, that the title of the act does not identify the act proposed to be amended by reference to- the date of its approval, and second, that the amendatory act purports to re-enact a, section of the original act Avhieh had been repealed by an intervening act, as held in Maxwell v. State, 89 Ala. 150. There Avas no act upon the statute books of the State Avlien the act of 1891 avus passed having the title set forth in the. title of that act other than the act of February 11, 1889. The reference in the title of the later act, therefore, could only have been to said act of 1889, and that title is- quite adequate as an expression of the subject with which the Legislature proposed to -deal AAdthout setting out the date of the earlier enactment. Under this title, this expression of the subject of the act, it was competent for the legislature to incorporate any provision cognate and proper for the expedition of the trial of capital cases whether such provision Avas in any form in the original act or not. A provision with reference to the number of challenges to be alloAved the defendant in a capital case, whereby the number theretofore allowed was reduced from twenty-one to ten, is obviously covered by and in line with the purpose set, forth in the title of tire act to expedite the trial of such cases. It cannot affect the question that a like provision was in the original act and had been stricken therefrom by repeal. To reincorpórate it is not to revive a repealed statute merely, but is to insert in the amendatory act a new pi'ovision cognate to the subject of that act. The court did not err, therefore, limiting the number of defendant’s peremptory challenges to ten. — See Ex parte Reynolds, 87 Ala. 138; Ex parte Cowert, 92 Ala. 94.

The name of the juror Johnson having- been inadvertently left out of the. box from which the drawings to make up the trial jury were made, and this not being discovered until all the other1 names had been drawn, it was proper for the, court to then have a slip containing this name put into the box, and to have it drawn therefrom, as the others had been drawn. — Morrison v. State, 84 Ala. 405. The court was proceeding to do this when the defendant objected to Johnson’s name being pxxt in the hat, and pending the determination of that objection a jury which constituted in part, the venire for this case but which was out considering of their verdict in another capital case when the drawing of this jury was entered upon and the names of all whom had been drawn during the drawing for this jury and laid aside, returned into court with their verdict; and thereupon the court, without expressly passing upon defendant’s objection to Johnson’s name being put into the box, proceeded to have not, only his name but, the. names of all the jurors who had been absent on the other case, put into the box, and from these names the. one xiecessary to complete the jury in this case was drawn, put, xxpon the defendant, who liad exhausted his challenges, and accepted by the State1. This juror was one of the jury which had been absent on the other case. • The defendant objected to all of this. We think the: course, pursued by the court, was erroneous. Johnson, though his name was originally left, out of the box through inadvertence, belonged to the “remainder of the venire” within the language of section 9 of the act of February 11,1891, ( Acts, 1890-91, pp. 561-3), and lie was one of “the other members of the venire” within the provision of section 2 of the act of February 8, 1895, (Acts, 1894-95, pp. 425-6), requiring the jury for the trial of a capital cáse called when a jury is out in another capital case to be made up of members of the venire other than such absent jurors. Until his name had been called and passed upon, the venire has not been exhausted; and it is only after the venire has been exhausted that the names of jurors who were absent'when first called can be again called, and such jurors if present put upon the parties. Act of Feby. 8, 1895, supra, § 2. The court might perhaps have discarded the name of Johnson in consonance with the defendant’s motion, treated the venire as having been exhausted and ordered the names of the jurors who had been absent placed in the hat, or recalled, without committing an error of which the defendant could complain; but it in effect overruled defendant’s motion, ordered Johnson’s name placed in the box, thereby determining that the venire had not been exhausted, and then took the further step of recalling the at one time absent jurors which was unauthorized so long as the name of any other member — Johnson’s—of the venire had not been called and passed upon.

Section 4997 of the Code does not apply to the matter of cmpannelling a jury under the special acts to which we have referred.

The court committed no error in its rulings on the admissibility of the testimony.

The question presented on the argument of the solicitor to the jury need not arise on another trial.

Reversed and remanded.