Ex parte Fletcher, 536

• Court: Supreme Court of Alabama
• Citation: 66 So. 148,188 Ala. 1
• Docket Number: 536
• Parties: Ex parte FLETCHER.
• Decision Date: 25 July 1914

66 So. 148

188 Ala. 1

Ex parte FLETCHER.

No. 536

Supreme Court of Alabama

July 25, 1914

Certiorari to Court of Appeals.

Certiorari on petition of Shell Fletcher to review relator's conviction for illegally selling liquors. Affirmed by the Court of Appeals. 65 So. 683. Reversed and remanded.

Parks & Prestwood, of Andalusia, for appellant.

Robert C. Brickell, Atty. Gen., and T.H. Seay, Asst. Atty. Gen., for the State.

PER CURIAM.

We may concede, without deciding, that section 32 of the act of 1907, special session, page 63, was not repealed by the local act of 1911, page 315, and that the defendant had to demand a jury as there provided, yet we are of the opinion that the defendant substantially complied with this requirement. Freeman v. Bridges, 123 Ala. 287, 26 So. 512. It is true that it affirmatively appeared in the case supra that the bond upon which the demand was made was returned and filed with the clerk, but section 6291 of the Code of 1907 required the sheriff to return the bond in question to the clerk, and, this being a ministerial act, the law presumes that the sheriff discharged his duty. Guesnard v. L. & N.R.R. Co., 76 Ala. 453; Smith v. State, 88 Ala. 73, 7 So. 52; Mechem on Public Officers, § 579. The Court of Appeals erred in holding that the defendant did not show a legal demand for a jury, and was therefore not entitled to one in the trial court, and the judgment of affirmance is reversed, and the cause is remanded to the Court of Appeals.

Reversed and remanded.