Pope v. State

McOLELLAN, J.

— By an act purporting to be approved November 23, 1907( Acts Sp. Sess. 1907, p. 24), the time for holding the circuit court in Chilton county, after the year 1907, was undertaken to be fixed therein. The bill (H. R. 26) originated in the House of Representatives, and, being there passed, was sent over to the Senate. That body regularly referred the bill to its standing committee, on revision of laws. — Sen. Jour. (Printed )Sp. Sess. 1907, p. 111. On a subsequent day the bill was reported to the Senate from the standing committee on finance and taxation. — Sen. Jour. (Printed) Sp. Sess. 1907, p. 152. It does not appear from the Senate Journal that the revision of laws committee acted on and reported back the bill so referred to it, nor that the bill was ever referred to the committee renoGina: it, viz., finance and taxation. In consequence the bill Was not constitutionally passed, and never be *70 came a law — Const. § 62; Tyler v. State, 159 Ala. 126 , 48 South. 672 ; Walker v. City of Montgomery, 139 Ala. 468 , 36 South. 23 .

In view of the stated invalidity of the attempting to fix the time for holding .the Chilton circuit court, Hon. W. W. Pearson, judge of the Fifteenth circuit, regularly ordered a special term of that court to be begun on Monday, May 10, 1909. Persons to constitute a grand jury had been summoned for that date, on the notion that a regular term of the court could be held at that time, as would have been the case had the act been valid. The judge incorporated in his order calling the special term a provision that the “grand and petit jurors drawn and summoned to appear at said court on May 10, 1909, shall he used for said special term of the court as far as practicable.” The means and course indicated by the provision quoted, just above, from the order calling the special term, were employed and pursued in the formation of the body preferring the indictment against Mrs. Pope. This procedure did not conform to, and was not permitted by, any applicable statute of which we are aware. The statute under which a grand jury for this special term — called, as it was, less than 20 days before the date for its convention under the order, thereby rendering impossible of observance section 7261 of the Code — should have been secured, was section 3249 of the Code. See Holland’s Case, 162 Ala. 5 , 50 South. 215 , construing that statute. As indicated, and as appears from the face of the record, that statute was not availed of. Accordingly, unless saved by Code, § 7572, no valid indictment could be preferred by the body purporting to act as a grand jury at the special term so ordered and held.

Code, § 7572, has no operation in this instance, for this reason, if not for others: The court never, at any time, assumed or attempted to direct the summoning of *71 a grand jury or grand jprors for that special term of the circuit court. The indictment was and is void, because not returned by a grand jury sectired under form of law, and which Was not “a special grand jury summoned by the direction of th'e court” (italics supplied.)

The judgment is reversed, and the cause is remanded.

Reversed and remanded.

Anderson, Mayfield, and Sayre, JJ., concur.