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171 Ala. 38

Jackson v. State

Supreme Court of Alabama

Decided February 19, 1911

Supreme Court of Alabama · decided 1911-02-19

Heard before Hon. H. A. Pearce. Elijah. Jackson was convicted of murder and be appeals. Counsel insist that tbe new jury law is unconstitutional because not enacted in accordance with tbe provisions of section 45, 64 and 66, Constitution 1901. As to tbe 1st proposition be cites State ex rel. Bragg y. Rogers, 107 Ala. 444; Bolling & Son v. Legrand, 87 Ala. 492. As to tbe 2nd proposition, be cites Bd. of Rev. v. Crowe, 37 So. 473; State ex rel.

Good law ✅— No negative treatment on recordhow we know

Reversed and remanded · Decided 1911-02-19

How this case has been cited

Cited by 26 later decisions — most recently November 1965 · most notably Whitehead v. State (1921), Evans v. State (1923)

26 state decisions

170191119201930194019501960decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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¶1On Rehearing.

ANDERSON, J.

¶2Section 32 of the jury law (Special Acts 1909, p. 319) says: “Whenever any person or persons stand indicted for a capital felony, the court must on the first day of the term, or as soon thereafter as practicable, make an order 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 cause, 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,” etc. The trial court designated 79 persons as constituting the venire to try this case, and proceeded to draw 40 names from the jury box, leaving a shortage of 39 to be cov*43ered by tbe regular jurors drawn and summoned for tbe week, and the record shows that less than 39 persons were drawn and summoned for the week. The result is the defendant did not get the venire fixed by the order of court and contemplated by law, for under the order of the court the venire was to consist of 79 persons, and only 40 persons having been drawn by the court, and 39 not having been drawn and summoned on the regular juries for the week, the venire did not comprise the number fixed by the order of the court.

¶3The defendant not having been tried by the venire to which he was, under the law, entitled, the case must be reversed; and the error was not cured by section 29 of the act, as it has no application as to what constitutes a legal venire, but relates to the manner of selecting, drawing, and impaneling juries.

¶4The judgment of the circuit court is reversed, and the cause is remanded.

¶5Reversed and remanded.

Dowdell, C. J., who concurred in the original opinion, was unavoidably absent upon the consideration of this rehearing, but the point covered in the opinion on rehearing was not decided in the original opinion, and the opinion on rehearing is concurred in by Mayfield, Sayre, and Somerville, JJ.
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