Jackson v. State

Citation55 So. 118,171 Ala. 38
Decision Date09 February 1911
CourtSupreme Court of Alabama

On Rehearing, April 27, 1911.

On Rehearing.

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Elijah Jackson was convicted of an offense, and he appeals. Reversed and remanded.

E. S Thigpen, for appellant.

Robert C. Brickell, Atty. Gen., for the State.


Section 32 of the jury law (Acts Special Session, p. 319) provides that the court shall make an order for juries to try capital felonies, "commanding the sheriff to summon not less than fifty nor more than one hundred persons including those drawn and summoned on the regular juries for the week set for the trial of the case and shall then in open court draw from the jury box the number of names required with the regular jurors drawn and summoned for the week set for the trial to make the number named in the order, and shall cause an order to be issued to the sheriff to summon all persons therein named to appear in court," etc. The order directed the sheriff to summon 79 persons, including the regular jurors for the present week of court. The order would have been better and more specific had it said "regular jurors drawn and summoned for said week," instead of the "regular jurors for the present week," as the regular jurors for said week might include persons not drawn and summoned, and might exclude some who were drawn and summoned, but not impaneled; but the order further proceeds and specifies the jury to try the defendant, and who are to be included in the copy served on the defendant, as being the 40 persons specially drawn, and the regular jurors "drawn and summoned for the week," and which, we think, removes any uncertainty in the former part of the order, and sufficiently designates the proper jury to be summoned by the sheriff, and the names to be served upon the defendant.

Counsel for the appellant attacks the new jury law because violative of sections 45, 64, and 66 of the Constitution. Section 45 has no application to amendments to bills upon their passage but applies to laws existing when the bill is passed and becomes a law. In other words, that enacted laws shall not amend, repeal, etc., existing laws, except in a certain way but section 45 has no application to amendments offered to bills upon their passage and during the consideration of same by the Legislature.

The amendments offered in the House were sufficiently set out and the journal shows that the vote was properly taken on said amendments. Nor did the amendment offered and adopted by the Senate have to appear in the House Journal. This court properly held, in the case of State ex rel. Brown v. Porter, 145 Ala. 541, 40 So. 144, that section 64 of the Constitution was complied with, if the amendment appeared on the journal of the body of the Legislature which offers same, and did not have to be entered upon the journal of both houses, and that the journal of the concurring house need only contain the names of the members voting for and against same. The amendment offered by Senator Reese appears in full in the Senate Journal (pages 602-604).

Appellant's counsel concedes that section 66 of the Constitution was complied with, if the case of Jacobs v. State, 144 Ala. 98, 40 So. 572, is sound, and that the journal in the instant case, as to dispensing with the reading of the...

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35 cases
  • State Docks Commission v. State ex rel. Jones
    • United States
    • Supreme Court of Alabama
    • 29 Septiembre 1933
    ...in the amendment and not a vote on the amended bill in its entirety. Brandon v. Askew, 172 Ala. 160, 54 So. 605. See, also, Jackson v. State, 171 Ala. 38, 55 So. 118. There are two ways by which one house can concur in amendment adopted by the other: One by yea and nay vote of concurrence; ......
  • Whittle v. State
    • United States
    • Supreme Court of Alabama
    • 27 Enero 1921
    ...... persons than that prescribed for the venire in the order of. the court, as was the case in Carmack v. State, 191. Ala. 1, 67 So. 989; Waldrop v. State, 185 Ala. 20,. 64 So. 80; Andrews v. State, 174 Ala. 11, 56 So. 998. Ann.Cas.1914B, 760; Jackson v. State, 171, Ala. 38,. 55 So. 118; Bailey v. State, 172 Ala. 418, 55 So. 601; Nordan v. State, 143 Ala. 13, 39 So. 406;. Walker v. State, supra. . . During. the oral charge the jury were instructed as follows:. . . "If the defendant got into a sudden encounter or affray. with ......
  • State v. Herzberg, 7 Div. 106.
    • United States
    • Supreme Court of Alabama
    • 31 Marzo 1932
    ...Byrd v. State ex rel. Colquett, 212 Ala. 266, 102 So. 223; Hawkins, Treasurer, v. Roberts & Son, 122 Ala. 130, 27 So. 327; Jackson v. State, 171 Ala. 38, 55 So. 118; ex rel. Gunter et al. v. Thompson, 193 Ala. 561, 69 So. 461; Lovejoy v. City of Montgomery, 180 Ala. 473, 61 So. 597; Gibson ......
  • Opinion of Justices
    • United States
    • Supreme Court of Alabama
    • 13 Octubre 1945
    ...enacted into law and not to 'bills upon their passage and during the consideration of the same by the Legislature.' Jackson v. State, 171 Ala. 38, 55 So. 118, 119. In case of Fuqua v. City of Mobile, 219 Ala. 1, 2, 121 So. 696, in discussing § 45 of the Constitution, this court said: 'One o......
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