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.
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
...