Childs v. State

• Decision Date: 06 February 1893
• Citation: 12 So. 441,97 Ala. 49
• Parties: CHILDS v. STATE.
• Court: Alabama Supreme Court

12 So. 441

97 Ala. 49

CHILDS v. STATE.

Supreme Court of Alabama

February 6, 1893

Appeal from Geneva county court; E. J. Borland, Judge.

John Childs was convicted of violating the Sabbath, and appeals. Reversed.

Wm. L Martin, Atty. Gen., for the State.

COLEMAN J.

The record of the pleadings and judgment entry in this case affirmatively show that the defendant was tried and convicted, as charged in the indictment, without having pleaded to the indictment and affirmatively show that the plea of not guilty was not entered by the court for him, and that there was no issue joined. In Jackson v. State, 91 Ala. 55, 8 South Rep. 773, we held: "There can be no trial on the merits in a criminal case until the defendant has pleaded not guilty, or this plea has been entered for him by the court." Fisher v. State, 46 Ala. 722, 723; Fernandez v. State, 7 Ala. 511; 1 Bish. Crim. Proc § 468. In this case the bill of exceptions states that the defendant pleaded not guilty in consequence of a statement of the court that unless he pleaded to the indictment the court would not permit him to cross-examine the state witnesses, or introduce evidence in his own behalf. We cannot conceive what principle of law or criminal procedure the trial court can invoke, to sustain its action in this respect. Without further reference to this question, it is sufficient to say that the pleadings proper, and judgment entries, of the trial court, constitute the records of the case, in that court, and are no proper part of a bill of exceptions. We cannot, therefore, permit a statement in a bill of exceptions, which is not a proper part of it, to control the record of the trial court. The record is as we have stated it, and affirmatively shows that the defendant did not plead to the indictment, that the court did not enter for him the plea of not guilty, and that there was no issue joined and submitted to the jury. This was error, for which the case must be reversed.

The defendant moved to quash the venire for causes which appear in the bill of exceptions. All the grounds of the motion may be disposed of by the determination of a single question. The special act to regulate the trial of misdemeanors in Geneva county, (Acts 1890-91, p. 1288,) in section 24, provides that "the petit juries for each January and July term shall consist of one panel of twelve men, and shall be selected as hereinbefore provided, and impaneled as petit jurors are under the general jury law, as it now stands, under the Code of 1886. ***" Section 25 is as follows: "Be it further enacted that all the general jury law, as it now stands in the Code of 1886, relating to petit juries and petit jurors in the circuit courts, except as modified or repealed by this act, shall be in full force, and applicable to petit juries and petit jurors, in the county court." The general jury law of the Code of 1886, referred to in this special act, has the following provision: "Sec. 4314. What Provisions Directory, Merely. The provisions of this chapter in relation to the selection, drawing, and summoning of jurors are merely directory; and juries selected, drawn and summoned, whether at an earlier or later day, must be deemed legal, and possess the power to perform all the duties belonging to grand and petit juries, respectively." It is contended that no part of the general jury law of the Code of 1886 could be adopted as a part of the special act by a mere reference to it in the manner in which it is done in the statute, but that it was necessary to set out in the act itself so much of the general jury law as was intended to be made a part of the special act. The constitutional provision ^[1] so far as it bears on this question, is that "no law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title, only; but so much as is revived, amended, extended, or conferred shall be re-enacted and published at length." The general jury law of the Code applied to the county of Geneva, and continued to apply after the enactment of the special statute, except so far as modified or repealed, expressly or by necessary implication, by the special act, and nothing contained in sections 24 and 25 of the act, which we have cited, did or could affect the applications of this rule of law. Each and every cause, except two, upon which the motion to quash the venire is based, has been adjudged and declared insufficient as grounds for quashing a venire. Gibson v. State, 89 Ala. 126, 8 South. Rep. 98; Arp v. State, (present term,) 12 South. Rep. 301.

The two remaining grounds are: (1) "That the sheriff of said county did not, on the first Monday of January, *** obtain and prepare a list of all the householders who are freeholders," etc.; (2) "that said jury was not selected from such list, as required by section 23 of the act," etc. As to the second ground, no proof was offered to show any irregularity in this respect, and we presume there was none. On the first ground,-that is, "that the sheriff did not on the first Monday in January obtain and...