76 Ala. 26 | Ala. | 1883
— The motion to quash the venire was properly overruled. One of the grounds upon which this motion was based, was the failure of the sheriff to find one of the jurors whose name was on the list of those drawn by the court, and ordered to be summoned, in accordance with the provisions of the special law regulating the drawing and impanneling of grand and petit juries in the county of Dallas. — Acts 1882-83, pp. 273, 278; and amendatory act, on p. 446.
This precise question was considered by us in McElroy v. The State, at the last term, where we held, that such a motion was without merit, the special law under consideration failing to provide for the contingency of the sheriff’s failure to find one or more of this list of jurors. In that case, we observed that, “if the law operated unjustly in some cases, the remedy is for the legislative, and not the judiciary department.” — 75 Ala. 9.
The second ground, upon which the motion to quash was urged, was a mistake in spelling the name of one of the persons, who was summoned as a juror, in both the list prepared by the clerk for the sheriff, and in the list served by the sheriff on the defendant.
The special law fails, to expressly provide for a case of this kind. The general law of the State, however, as embraced in section 4876, provides that, in such a case, the venire shall not be quashed, “ unless the court, in its discretion, is of opinion that the ends of justice so require,” but that the court must “ direct the names of such persons to be discarded, and others to be forthwith summoned to supply their places; and the persons so summoned shall be disposed of in the same manner as if they had been summoned in the first instance.” — Code, 1876, § 4876. The court seems to have pursued the course required by the general law, and this, we think, was without error. The special law repeals the general law, only so far as it is repugnant to its provisions. As to all matters where no repugnanc.y exists, we can not infer that there is any legislative intention that the one shall be abrogated by the other. Repeals by implication are universally held not to be favored. — Joseph v. Cawthorn, 74 Ala. 411; Herr v. Seymour, at present term. The quashing of the venire was purely a matter of discretion with the Circuit Court, and we can not review the exercise of such discretion.
There is no error in the record, and the judgment of the Circuit Court, with the sentence of death which it has pro