Dixon v. State

Decision Date14 January 1936
Docket Number6 Div. 945
Citation167 So. 340,27 Ala.App. 64
PartiesDIXON v. STATE.
CourtAlabama Court of Appeals

Rehearing Denied Feb. 4, 1936

Appeal from Circuit Court, Jefferson County; J. Russell McElroy Judge.

Ernestine alias Ernestene, Dixon was convicted of murder in the second degree, and she appeals.

Affirmed.

Certiorari denied by Supreme Court in Dixon v. State (6 Div 924) 167 So. 349.

Dan Trawick, Jr., of Birmingham, for appellant.

A.A. Carmichael, Atty. Gen., for the State.

SAMFORD Judge.

The sole and only question of merit in this case is as to the constitutionality of an act of the Legislature, approved September 13, 1935, and entitled, "An Act To provide for and regulate the mode of selecting and impaneling juries in all criminal and quasi criminal cases in circuit courts in counties having a population of 300,000 or more according to the last or any future Federal census," Acts 1935, p. 1010. Since the Constitution of 1901, the courts of this state, through the various pronouncements of the Supreme Court, are thoroughly committed to the proposition that a law which seeks to classify the state into various subdivisions on account of and by reason of the population in the classification, provided such classification is made in good faith and not a mere effort to avoid the restrictions of the Constitution, is a general law and not local, although its application might, for the time being, apply only to a subdivision of the state, leaving the remainder of the state in a classified group to be governed by the general law theretofore existing.

Where there is a substantial difference in the population and the classification is made in good faith, reasonably related to the purpose to be effected and to the difference in population which forms the basis thereof, and not merely arbitrary, the enactment is a general law, although at the time it may be applicable only to one political subdivision of the state; but if the classification bears no reasonable relation to the difference in population upon which it rests in view of the purpose to be effected by such legislation, and clearly shows it was merely fixed arbitrarily, guised as a general law and in effect is a local law, such enactment would then be a plain violation of the Constitution. Reynolds v. Collier, 204 Ala. 38, 85 So. 465; Vaughan v. State, 212 Ala. 258, 102 So. 222; Walden v. City of Montgomery, 214 Ala. 409, 108 So. 231; State v. Gullatt, 210 Ala. 452, 98 So. 373.

In making such classification, the population as shown by the federal census is held to be a fair basis for the purpose of special legislation applicable to the entire state. Cobbs v. Home Ins. Co., 18 Ala.App. 206, 91 So. 627.

The opinion of the trial judge, the Hon. J. Russell McElroy, rendered by him, on motion for a new trial, is so apt and well stated, with regard to all of the questions raised in this record, that we adopt the same as our own opinion as being the law of the case.

"The defendant presents upon her motion for a new trial certain points raised by her upon the trial having to do with the selection and impaneling of the jury before which she was tried.

"Her complaint is that she was put to trial over her objection, the objection being made before a jury obtained from a panel of the regular jurors summoned for the week in which she was tried, and that no special venire was drawn and summoned pursuant to section 8644 of the 1923 Code of Alabama. She further complains that she was allowed to strike only from a list of thirty competent jurors instead of from the entire list of jurors that had been organized for service for the week. She further complains that she was not allowed two strikes from the list furnished to the state's one, but on the contrary was allowed only an equal number of strikes with the state.

"This court acted pursuant to an act of the Legislature entitled, 'An Act To provide for and regulate the mode of selecting and impaneling juries in all criminal and quasi criminal cases in circuit courts in counties having a population of 300,000 or more according to the last or any future Federal census.' The body of said act reads as follows:

" 'Section 1. The provisions of this Act shall apply to and be operative only in circuit courts of this State in counties having a population of 300,000 or more according to the last or any future Federal census.
" 'Section 2. In every criminal case, any defendant or the prosecution may demand a struck jury. When so demanded, the clerk or his deputy or assistant or other person designated by the judge presiding, shall furnish all parties with a list of twenty four competent jurors in attendance upon the court, from which a jury must be obtained by the prosecution striking first from the list the name of one juror, and then the defendant striking from the list the name of one juror, and thereafter continuing to strike off one name alternately until only twelve jurors remain on the list, and these twelve thus selected shall be the jury charged with the trial of the case, except that in capital cases the list of competent jurors shall contain thirty names.
" 'Section 3. The said twenty four jurors shall be obtained from all of the jurors then in attendance upon such courts and who at the time are readily and presently available for the trial of the case in such manner but without selection of names as the judge of such courts may prescribe by rule of court, or if no such rule is provided, then in such manner, but without selection of names, as ordered by the judge presiding on the trial of the case. In the event neither the prosecution nor any defendant demands a struck jury, the court shall obtain without selection of names, twelve competent jurors from the jurors then in attendance upon the court, and readily available for the trial, which said twelve jurors shall try the case.
" 'Section 4. In the event that twenty four competent jurors are not readily and presently available for the striking of a jury in a misdemeanor or quasi-criminal case, then the prosecution and the defendant or defendants may be required to strike from the competent jurors that are presently and readily available for the trial provided the number of competent jurors is not less than eighteen. The striking of names when less than twenty four competent jurors are presently and readily available for the trial shall proceed in the same order and manner as if striking from a list of twenty four jurors, until only twelve jurors remain on the list and these twelve shall be jury charged with the trial of the case.
" 'Section 5. In case two or more persons are tried jointly, the solicitor shall strike one and each defendant shall have the right to strike off one name and they shall continue thus to strike off names until only twelve remain, and the twelve thus selected shall be the jury charged with the trial of the defendants.
" 'Section 6. If any defendant or defendants should refuse to strike the number of jurors allowed him by this act, from the list furnished him, then the judge presiding shall proceed to strike off the names for the defendant or defendants refusing to strike.
" 'Section 7. 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 such courts.
" 'Section 8. It shall not be a ground to quash the venire or to continue any case of the kinds referred to in this act that the sheriff has failed to summon any of the jurors drawn for service during the week in which said case is set for trial, or that any of the jurors summoned have failed or refused to attend court, or that there is any mistake in the name of any juror summoned, or that a judge, either in open court or otherwise has, for any cause, excused any juror summoned for service for the week in which said case is set for trial.
" 'Section 9. The provisions of this act are directory merely and not mandatory.
" 'Section 10. If any section or provisions of this act shall be declared unconstitutional and void, this shall not affect any other provision or section not in and of itself unconstitutional and void.
" 'Approved September 13, 1935.'
"The defendant has challenged the validity of this act claiming that it is violative on several sections of the 1901 Constitution of Alabama. The court will proceed to consider the several objections which have been made by the defendant to the constitutionality of the act above referred to.
"Section 106 of the Constitution.
"The defendant contends that said act is a local act and is void for noncompliance with the provisions of section 106 of the Constitution which prohibits the passage of a local law unless notice of the intention to apply for the passage thereof shall have been published for a specified time beforehand. The pivotal point for decision upon this contention is whether the said act is a local law. This court is of the opinion that it is not a local law for the reasons below indicated. It is the law of Alabama, as elsewhere, generally, that classification in statutes predicated upon differences in population is permissible as general legislation where the class upon which the law is to operate is characterized by some substantial qualities or attributes which in reason render such legislation necessary or appropriate for the class. Of classification predicated upon differences in population, our Supreme Court has held that where there is a substantial difference in population and the classification is made in good faith, and is reasonably related to the purpose
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