Burns v. State

• Decision Date: 15 June 1944
• Docket Number: 6 Div. 186.
• Citation: 246 Ala. 135,19 So.2d 450
• Parties: BURNS v. STATE.
• Court: Alabama Supreme Court

19 So.2d 450

246 Ala. 135

BURNS v. STATE.

6 Div. 186.

Supreme Court of Alabama

June 15, 1944

Rehearing Denied Nov. 2, 1944.

Appeal from Circuit Court, Jefferson County; John C. morrow, judge.

Horace C. Alford, of Birmingham, for appellant.

Wm N. McQueen, Acting Atty. Gen., and John O. Harris and Geo. C Hawkins, Asst. Attys. Gen., for the State.

STAKELY, Justice.

Appellant was tried and convicted of murder in the first degree. He received the death sentence. It is claimed by the State that Jake Prescott was murdered on the night of January 16, 1943. Three or four weeks later his body was found floating in Short Creek in Jefferson County. He had wounds on his head and his throat had been cut. His abdomen was slit open and in the opening was a hatchet and sledge hammer, held in place by cloth tied around the abdomen.

On this appeal, a reversal is sought on grounds which may be classified as (I) an attack on the procedure whereby the jury was impaneled and selected; (II) an attack on the sufficiency of the evidence on which the conviction was obtained; and (III) an attack on various rulings relating to the trial and its conduct, such as the rulings of the court on evidence charges, and on other matters arising in the course of the trial.

I. It is urged that the court was in error in overruling the motion to quash the venire. The motion is based upon a number of grounds. It appears that the venire was drawn on June 26, 1943, for use in the circuit court during the week of July 19, 1943, the time of the trial. It is argued that the end of the term is the last Saturday in June and since the new term does not begin until the first Monday after July 4th, the action of the court in drawing the venire on June 26th is void. The theory is that since § 196 et seq., Title 62, Code of 1940, which apply to Jefferson County, do not prescribe the time for drawing the venire in a capital case, resort must be made to the general law as set forth in § 63, Title 30, Code of 1940, to determine the proper time for drawing the venire. This section reads in part as follows: "§ 63. Order for special venire; drawing and summoning special venire.--Whenever any person or persons stand indicted for a capital felony, the court must, on the first day of the session or as soon as practicable thereafter, make an order commanding the sheriff to summon not less than fifty nor more than one hundred persons, including those drawn on the regular juries for the week set for the trial of the case, and shall then in open court draw from the jury box the number of names required, * * *."

There is no merit in the contention. Terms of court have been abolished in this state. § 114, Title 13, Code of 1940. § 63, Title 30, referred to supra, has no application in Jefferson County, because a special procedure has been provided for Jefferson County.

"No special venire shall be ordered or drawn for the trial or trials of a defendant or defendants in capital felonies, and a defendant or defendants in capital felony cases shall only be entitled to strike from a list of twenty-four competent jurors obtained from the regular juries in the court." § 226, Title 62, Code of 1940.

The jury was properly drawn. § 30, Title 30, Code of 1940. See also § 45, Title 30, Code of 1940.

Besides, § 46, Title 30, Code of 1940, provides as follows: "No objection can be taken to any venire of jurors except for fraud in drawing or summoning the jurors." The very purpose of the foregoing section is to prevent the quashing of venires for mere irregularities, assuming for the sake of argument that there was an irregularity in the present instance. Wimbush v. State, 237 Ala. 153, 186 So. 145. No fraud is alleged, as required by the statute, which puts the matter beyond controversy. Zininam v. State, 186 Ala. 9, 65 So. 56; Richardson v. State, 191 Ala. 21, 68 So. 57; Garner v. State, 206 Ala. 56, 89 So. 69; Wimbush v. State, supra.

An examination of the record clearly shows that the procedure followed in summoning and impaneling the jury is the procedure provided solely for Jefferson County in § 196 et seq., Title 62, Code of 1940. It is insisted that these sections are unconstitutional and void, and that this being so, the appellant was entitled to have the jury summoned and impaneled in accordance with the general law of the state as set forth in § 63 et seq., Title 30, Code of 1940. It is pointed out that the general law gives the defendant certain rights which the local law does not, as for example, the right to have a special venire drawn from the jury box from which the defendant may strike the jury, the right to strike two jurors to the State's one juror, and the right to have a copy of the special venire served upon him at least one day before the day of trial. We shall proceed to an examination of the questions involved, because if the local jury law of Jefferson County is unconstitutional and void, then the motion to quash the venire should have been granted and it would be no answer for the State to rely on § 46, Title 30, Code of 1940, and say that no fraud was alleged in drawing or summoning the jury.

It is insisted that § 196 et seq., Title 62, Code of 1940, constitute local law, since these sections are expressly made applicable solely to Jefferson County. These sections are a codification of acts which were general laws with local application (Acts 1931, p. 455; Acts 1931, p. 255; Acts 1932, Ex.Sess., p. 89; Acts 1935, p. 1010; Acts 1936, Ex.Sess., p. 6). This is a correct insistence. It is further earnestly insisted that since this is local law, it is unconstitutional and void because in its adoption in the Code of 1940 by the legislature, the requirements of § 106 of the State Constitution as to notice and publication were not complied with. This position is incorrect and not in keeping with our decisions.

"In answer to your first inquiry, we agree with you that the Act passed over the Governor's veto May 26, 1931, to which you refer in that inquiry is a local act under section 110, Constitution, since it is a designation of Mobile in substance as the only city to which it may ever apply, and is therefore subject to section 106, Constitution, if it is not included in section 104(18). Whether it violates section 104(18) is not now considered. Mobile County v. State ex rel. Cammack, 240 Ala. 37, 197 So. 6.

"The provisions of this Act to the extent that they appear in the Code of 1940, Title 62, section 461, are made effectual by the adoption of the Code as of May 31, 1941. * * * " State v. Baumhauer, 244 Ala. 1, 12 So.2d 326, 329.

In response to the question as to whether § 106 of the Constitution should be followed in amending the statutes which constitute Title 62 of the Code of 1940, the Justices of this court gave the opinion that in order to make such amendment it is necessary to comply with § 106 of the State Constitution because these statutes constitute local law.

But in order that there might be no misconstruction of this opinion, the Justices further said: "This court has held that several of the constitutional requirements touching the enactment of a law do not obtain as to the codification of public statutes under the Constitution, Art. 4, § 85. Gibson v. State, 214 Ala. 38, 43, 106 So. 231; Ex parte Thomas, 113 Ala. 1, 21 So. 369. That is, the incorporation of acts into the code and the adoption thereof by the legislature cures all defects in the same that may have intervened in original enactment. Bluthenthal & Bickert v. Trager & Co. et al., 131 Ala. 639, 31 So. 622; State ex rel. Sossaman v. Stone, 235 Ala. 233, 178 So. 18; State v. Stone, 236 Ala. 82, 181 So. 281; Dillon v. Hamilton, 230 Ala. 310, 313, 160 So. 708; State ex rel. Hyland v. Baumhauer, Ala.App., 12 So.2d 340; Brandon v. State, 233 Ala. 1, 4, 173 So. 238." In re Opinion of the Justices, 244 Ala. 384, 13 So.2d 762, 764.

In view of the earnest insistence of counsel, it is fair to consider the reasoning which supports the foregoing statement by the Justices, which cites the decision quoted supra. Title 62, and especially sub. 5 of Title 62 (§ 196 et seq.), is but a part of the Code of 1940. The Code of 1940 was adopted in its entirety by the Act of the Legislature approved July 2, 1940. Of course, if the Act of July 2, 1940, was a local act, compliance with § 106 of the Constitution was necessary. In determining whether the act is local or general so far as it relates to § 106 of the Constitution, the act must be considered as a whole and not in part. It will not be considered as part local, requiring notice, and the balance as general, requiring no notice.

" * * * Of course, if the act of 1921 is local, the requirements of section 106, Constitution, must have been complied with.

"The question in that respect relates to the act as a whole, and not to a part. It is either a local act, or a general act. It cannot be divided so that a part will be local and a part general requiring notice as to a part, and none as to the balance. * * * " Dillon v. Hamilton, 230 Ala. 310, 312, 313, 160 So. 708, 710.

We think it is plain that when the act was passed by the Legislature, adopting the Code of 1940 in its entirety, a general law was enacted. The Code of 1940 contains sixty-two Titles, each Title being comprised of many sections. Only one Title, which is Title 62, contains local law, and that law, as originally enacted, was general law with local application (Publishers' Forward, Vol. 1, Code of 1940).

But it is argued that this construction will allow the Legislature to avoid the requirements of § 106 of the Constitution by enacting laws of which those who are interested will have no notice, by the device of adopting a Code. This idea overlooks the nature of a Code and in the...