Jackson v. State , 37 Ala. App. 519 ( 1954 )

CARR, Presiding Judge.

The appellant, Linnie Jackson, was indicted and convicted for the offense of miscegenation as denounced by Title 14, Sec. 360, Code 1940.

The appeal is before us on the record proper without a transcription of the testimony.

The accused demurred to the indictment solely on federal constitutional grounds, taking the position that the statute is in violation of the Fifth and Fourteenth Amendments to the Constitution. This presents the only question for our review.

Section 102, Art. 4 of the Constitution of Alabama of 1901 provides:

"The legislature shall never pass any law to authorize or legalize any marriage between any white person and a negro, or descendant of a negro.”

The statute of instant concern appeared first in our Penal Code of 1866, Sec. 61. It was in the following form:

“If any white person and any negro, or the descendant of any negro, to the third generation inclusive, though one ancestor of each generation was a white person, intermarry, or live in adultery or fornication with each other, each of them must, on conviction, be imprisoned in the penitentiary, or sentenced to hard labor for the county, for not less than two, nor more than seven years.”

Without substantial or material change it is found in Codes 1867, Sec. 3602; 1876, Sec. 4189; 1886, Sec. 4018; 1896, Sec. 5096; 1907, Sec. 7421; and 1923, Sec. 5001.

In the current code the verbiage is:

“If any white person and any negro, or the descendant of any negro intermarry, or live in adultery or fornication with each other, each of them shall, on conviction, be imprisoned in the penitentiary for not less than two nor more than seven years.”

In the case of Ellis v. State, 42 Ala. 525, our Supreme Court held that the statute, then Sec. 3602, Code 1867, did not contravene the Act of Congress of April 9, 1866, 14 Stat. 27.

A few years later, in the case of Burns v. State, 48 Ala. 195, the court overruled the holding in the Ellis case.

In Green v. State, 58 Ala. 190, the Supreme Court specifically overruled the Burns case. The court reaffirmed this position in Hoover v. State, 59 Ala. 57, and Pace & Cox v. State, 69 Ala. 231. The latter case went to the United States Supreme Court and was affirmed. 106 U.S. 583, 1 S.Ct. 637, 27 L.Ed. 207.

This court followed this view in Wilson v. State, 20 Ala.App. 137, 101 So. 417. On certiorari, the Supreme Court, without an opinion, denied the writ. 211 Ala. 613, 101 So. 423.

By the mandates of Title 13, Sec. 95, Code 1940, the decisions of the Supreme Court shall govern the holdings and decisions of this court.

The judgment below is ordered affirmed.

Affirmed.