78 Ala. 411 | Ala. | 1885
Prom the jurors drawn and summoned prior to the term of the court, a grand jury, consisting of fifteen persons, was organized. After the organization, the grand jury was reduced below the legal number, one of the members having been excused because of sickness in his family. To supply the deficiency thus occurring, the court made an order, that the sheriff summon two persons from the qualified citizens of the county. Pursuant to the order, two persons were summoned, whose names were written on separate slips of paper, which were placed in a hat, and therefrom the name of one was drawn, who was sworn and put on the grand jury. The indictment was preferred and returned into court by a grand jury so organized. The order and proceedings were had under and in compliance with section 4754 of the Code.
It is contended, that section 4754 is repealed by the “Act to more effectually secure competent and well qualified jurors in the several counties of this State, with the exception that the provisions of this act shall not apply” to certain named
The repeal of statutes by implication is not favored; and unless there is a real repugnance, and no reasonable field for the operation of both statutes without displacing the provisions of either, the conclusion is, that the legislature intended both statntes should be in force. — Herr v. Seymour, 76 Ala. 270. And if there is an irreconcilable conflict, extending only to a part of the provisions of the older statute, the repeal is only pro tanto. By the express provision of the act, all laws relating to the drawing and selection of jnrors, not in conflict with its provisions, are continued in force. No provision for drawing, or summoning, or selecting persons to complete the grand jury, in the event the number is reduced below fifteen, by excuses after it has been fully and regularly organized, is made. When the legislature, in terms, limited the drawing from the jury-box to the failure of a sufficient number of those previously drawn to attend, and to the time of the organization of the grand jury, we can not, by construction, extend its operation, so as to repeal by implication a prior statute providing for subsequent contingencies. The original organization of the grand jury affords a reasonable field for operation of the later statute, without displacing the provisions of section 4754, in respect to the subsequent reduction of the number. The result is, that the provisions of section 4754, so far as they relate to the original organization of the grand jnry, are repealed, but are continued in force, in respect to a contingency subsequently happening, whereby a deficiency in the legal number is created.
The absence of the word “of” in the description of the ownership of the property is clearly a clerical omission, and does not render the indictment fatally defective. The context supplies the omission. — Whar. Crim. PI. & Pr. § 275.
Affirmed.