Wilson v. Brown
| Decision Date | 30 April 1941 |
| Docket Number | 4 Div. 205. |
| Citation | 241 Ala. 178,1 So.2d 914 |
| Parties | WILSON v. BROWN et al., Jury Commissioners. |
| Court | Alabama Supreme Court |
John C. Walters, of Troy, for appellant.
Thos. S. Lawson, Atty. Gen., and W.W. Callahan Asst. Atty. Gen. for appellees.
This appeal is from a judgment of the circuit court dismissing the appellant's petition for the issuance of a writ of mandamus.
The petition was filed, November 2, 1940, against the respondents as the Jury Commission of Pike County alleging that prior to filing the petition, said Commission had made a jury roll consisting of from three hundred to seven hundred persons as qualified to serve as jurors and had placed the names of said persons in the jury box; that there were at the time from three thousand to four thousand persons residing in Pike County qualified to serve as jurors, and not exempt from such service, and the petitioner prayed that said jury commission be required to place said persons so qualified on the jury roll and in the jury box for use in defendant's trial on an indictment for murder; and the petition states that "Relator asks only that qualified white citizens be placed on Jury roll & Jury Box & alleges there are 4000 such."
A rule nisi was granted, and the respondents demurred, and moved to quash the rule, and filed answer.
On motion of petitioner the court struck the respondents' demurrers and motion to quash. The answer, in paragraph three, alleges that subsequent to filing the petition, the Judge of the circuit court, as he was authorized to do by § 18 of the Act of 1939, p. 90, creating the Jury Commission approved March 2, 1939, issued an order to the respondents as the Jury Commission to empty said jury box and refill the same; that in obedience to said order they met and made a new jury roll of all persons, in their judgment, qualified to serve as jurors, and not exempt, and placed on said roll and in said jury box "the names of over one thousand male citizens of Pike County, being all the male citizens of Pike County who, in the opinion of Respondents, are generally reputed to be honest and intelligent men and are esteemed in the community for their integrity, good character and sound judgment, and who are not exempt by law from jury duty."
The petitioner demurred to the answer and the court overruled his demurrer. He thereupon amended the petition alleging "Said Jury Commissioners have placed a number of names on the said Jury Roll, not exceeding eight hundred, the exact amount of which are unknown to Relator and that the said Jury Commissioners have not put all of said names that are on said Roll in the Jury Box."
The respondents refiled their answer and return to the rule nisi, and the petitioner joined issue of fact thereon, as he had the right under the statute to do. Code 1923, § 8979; Garrett, Sheriff v. Cobb, 199 Ala. 80, 74 So. 226.
The return or answer, under the common law, was not traversable, but the facts stated therein were taken as true, and if sufficient in law, conclusive. 18 R.C.L. p. 374, § 302.
The statute, above cited, remedied this defect, and gave the relator the right to join issue in law or fact on the averments of the return and controvert the same by legal competent evidence, but puts the burden on the relator or petitioner. The statute provides "the return or answer shall not be conclusive, but the truth or sufficiency thereof may be put in issue and controverted." Code 1923, § 8979; State ex rel. Farmer v. Board of School Com'rs of Mobile County et al., 226 Ala. 62, 145 So. 575. (Italics supplied.)
If, as set forth in the third paragraph of the return of the Jury Commissioners of Pike County, after the filing of the petition, it was by order of the circuit judge required to meet and empty the jury box, make a new jury roll, of all persons residing in the county, possessing the necessary qualifications to serve as jurors, and not exempt from jury service, and place the names of such persons in the jury box, and the commission met and complied with this order and placed in said box more than one thousand names, all that in their judgment were qualified, this was sufficient, as a matter of law, in the absence of fraud, to warrant the denial of the mandamus. Fraud is not alleged, therefore the demurrer to the return and motion to quash were properly overruled. Gen.Acts 1939, p. 90, § 18.
The fact that the relator prayed, and the rule nisi required, the jury commissioners to place the names of only duly qualified white persons on the jury roll and in...
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