Brown v. State , 209 Ala. 490 ( 1923 )

It is true that section 15 of the Jury Law (Acts 1909 Special Session, p. 310), providing for drawing juries at one term for the next term says:

"The judge, or where there are more than one then any two of the judges of the court shall draw from the jury box in open court," etc.

Whether this provision was directory or mandatory we need not decide, since it has been repealed by implication in so far as it applies to circuits composed of one county and wherein there are more than one judge. Acts 1915, pp. 810, 811, §§ 4 and 9. Section 9 provides:

"In order to expedite business the presiding judge may require other judges to hear pleadings in cases assigned to them, and may assign to any of them the duty of drawing and impaneling the juries, while the presiding judge is otherwise engaged."

This, of course, means that the presiding judge may assign the drawing of juries to any one of the judges when he is otherwise engaged, and necessarily means one judge when there are but two in the circuit. The evidence shows that Judge McCord, the presiding judge, ordered the drawing of juries, whether he participated in the drawing or not; and, presumptively, he was otherwise engaged, nothing to the contrary appearing. The proof here, however, shows that he was otherwise engaged when the grand jury in question was drawn. It is also apparent from the act that the presiding judge could perform that duty himself as it contemplates that it should fall upon him primarily. We find nothing in the act requiring that the assignment must be in writing or incorporated in the minutes of the court. Milligan v. State, 208 Ala. 223,94 So. 169. True, there was a minute entry of the order in this case which the court held was sufficient, but it was not held that such a minute entry was necessary.

The state could have more properly tested the special pleas by demurrer instead of taking issue upon same but we think that the proof failed to establish a material averment of each of them so as to justify the general charge for the state. Each of the pleas avers that the juries were not drawn by an officer authorized by law, when the undisputed evidence shows, as matter of law, that they were drawn by an officer authorized by law to do so. Rasco v. Jefferson, 142 Ala. 705, 38 So. 246.

The Court of Appeals was not divided in the opinion that the other questions did not present reversible error, as to which we agree; and, as there was no reversible error upon the point of division and which is the one above treated, the judgment of the circuit court is affirmed.

Affirmed.

McCLELLAN, SOMERVILLE, and THOMAS, JJ., concur.

On Rehearing.