Harper v. State

• Decision Date: 10 April 1896
• Citation: 109 Ala. 28,19 So. 857
• Parties: HARPER v. STATE.
• Court: Alabama Supreme Court

19 So. 857

109 Ala. 28

HARPER v. STATE.

Supreme Court of Alabama

April 10, 1896

Appeal from Shelby county court; John S. Leeper, Judge.

William S. Harper was convicted of trespass after warning, and appeals. Affirmed.

The appellant was prosecuted, tried and convicted upon a complaint, which was made by Tillman Raines before the clerk of the county court of Shelby county, charging the defendant with trespass after warning. The defendant objected to going to trial upon the ground as stated in the opinion. This objection was overruled, and the defendant duly excepted. Thereupon the defendant made separate motions to strike from the file the affidavit of the prosecutor, upon which the warrant was issued, and to quash the warrant, on the ground that the affidavit was not made before an officer authorized by law to take such affidavit. Each of these motions was overruled, and to each of these rulings of the court the defendant separately excepted. The defendant moved the court to quash the venire of petit jurors which had been drawn for the term, upon the ground that said jurors had not been drawn according to law. The court granted this motion to quash the venire, discharging all the persons in attendance upon court as jurors, and then ordered the sheriff "to summon from the bystanders twelve persons to serve as jurors at this term of the court." The defendant objected to this order, and duly excepted to the court overruling his objection. The defendant then moved the court to quash the panel then organized under the said order of the court, upon the ground that the court was not authorized by law to make said order and to organize said jury. The court overruled this motion and the defendant duly excepted thereto. The defendant then pleaded the jurisdiction of the court, setting up as ground of said plea the facts alleged as a ground for his objection to going to trial, which is stated in the opinion. The court sustained a demurrer to this plea, and to this ruling the defendant duly excepted. Upon the examination of the prosecutor, Tillman Raines, as a witness, he testified that he was in possession of certain lands, and "that he had bought the same from Longshore & Beavers." The defendant objected to the witness' stating from whom he had bought the land, and duly excepted to the court's overruling his objection. Upon the witness, in response to questions by the state, testifying to the contents of certain written notices which he had posted on his land, the defendant moved to exclude said testimony, and duly excepted to the court overruling his motion. Upon the introduction of Green Seales as a witness for the state, he testified, among other things as follows: "That he only knew where the line of the lands of said Raines was by what old man May had told him and a line run by Charlie Christian. Solicitor then asked witness where the line established by Charlie Christian ran, and defendant objected upon the ground that Christian was not a county surveyor, and the court overruled his objection and defendant excepted. Said witness Seales then said that the line run by Christian ran somewhere about where the base line was said to run, could not say whether or not it ran on the base line. Defendant moved to exclude from the jury what the witness said about the Christian line, and the court overruled the objection and defendant excepted." The other facts of the case are sufficiently stated in the opinion.

R. W. Cobb and W. T. Johnson, for appellant.

Wm C. Fitts, Atty. Gen., for the State.

HARALSON J.

On February 4, 1895, the defendant was arrested for the alleged offense of trespass after warning on the premises of Tillman Raines, on a warrant issued in due form by the clerk of the county court of said county, and gave bond for his appearance at the next term of the county court of said county of Shelby, to answer said charge. He appeared at the August term of said court, and was tried for said offense, found guilty and fined $25.

The defendant objected to going to trial on the ground, as alleged, "that said act, approved February 18, 1895, under which defendant was held for trial, was not and is not a valid and legal enactment of the general assembly of said state, because said act contained more than one subject, as well as the fact, that the subjects of said act are not clearly expressed in the title of said act; and, therefore, said act was in violation of the provisions of the constitution of said state, and being an invalid and illegal act or enactment, the organization and holding of this court is without authority of law." The only questions argued by counsel for defendant in their brief filed in the cause, are, first, that the title to the act of February 18, 1895 (Acts 1894-95, p. 1088), was to amend the act approved February 12, 1891 (Acts 1890-91, p. 580), whereas, the first section of the said act of 1895, purports to amend an act approved February 21, 1893 (Acts 1892-93, p. 826).

Originally the title to an act was held to be no part of it, affording no clue to the legislative intent; that being in strictness no part of the act in a legal sense, it would be absurd to attempt to use it for the purpose of restraining or controlling any positive provision of the act, and, taken in connection with other parts of the statute, when the intent was not plain, it might assist in removing ambiguities. Sedg. St. Const. Law, 39; Suth. St. Const. § 210. But the constitution of this state provides, that "each law shall contain but one subject, which shall be clearly expressed in the title" (article 4, § 2); and in construing this provision we have held, that "the title is regarded as an essential part of the law, having a specific object and office,-to control the subject of the enactment, and to restrict its provisions and details to such matters as are pertinent and germane to the single object expressed in the title;" and that it is mandatory, with the qualification, that it must not be so exactingly enforced as to embarrass legislation. Stein v. Leeper, 78 Ala. 520; White v. Levy, 91 Ala. 175, 8 So. 563. The intention of the requirement, that the subject of the act shall be clearly expressed in the title, as has been held, was to inform the members of the legislature, and perhaps the public, on which the former are invited to vote and legislate. Ballentyne v. Wickersham, 75 Ala. 536. The act in question, by its title, is, "to amend an act for the trial of misdemeanors in Shelby county, approved February 12th, 1891." The first section is: "That an act entitled an act to regulate the trial of misdemeanors in Shelby county, approved Feb'y 21st, 1893, be amended so as to read as follows," etc. Here is an obvious, patent mistake, in the title or in the body of the act. It is well settled that legislative enactments are not, any more than any other writings, to be defeated on account of mistakes, errors or omissions, provided the intention of the legislature can be collected from the whole statute. Suth. St. Const. § 260; End. Interp. St. § 302, and numerous authorities cited by the authors. Giving to the title to this act the controlling effect it has been held it must have under our constitution, in determining what a statute may and may not contain, we must hold it was the law of 1891 and not that of 1893, that was intended to be amended by the law of 1895, and that the date, February 21, 1893, appearing in the first section of the last amendatory act, is an error and must be...