Opinion
3 Div. 4.
August 25, 1970. Rehearing Denied September 15, 1970.
Appeal from the Circuit Court, Montgomery County, Eugene Carter, J.
James D. Straiton, Montgomery, for appellant.
Each of said jury commissions shall be composed of three members who shall be qualified electors of the county in which they are appointed and shall be men reputed for their fairness, impartiality, integrity and good judgment. Members of the commission shall not during the term for which they are appointed and during their tenure in said office hold any other office by appointment or election or perform any other public duty under the federal, state, county or municipal government which carries with it any compensation whatsoever. Code of Alabama, Recompiled 1958, Title 30, Section 9. A trial judge should not preside in a case in which he is a material and necessary witness. Reeves v. State, 260 Ala. 66, 68 So.2d 14. Jury rolls and jury boxes must contain a representative cross section of the community. Scott v. Walker, 358 F.2d 561 (5th Cir. 1966); Billingsley v. Clayton, 359 F.2d 13, (5th Cir. 1966); Id., 385 U.S. 841, 87 S.Ct. 92, 17 L.Ed.2d 74 (1966); Labat v. Bennett, 365 F.2d 698 (5th Cir. 1966).
MacDonald Gallion, Atty. Gen., and Walter S. Turner, Asst. Atty. Gen., for the State.
The statute providing that Montgomery County Circuit Judges could be members of the Jury Commission is not unconstitutional where such Judges do not receive any extra compensation for their additional duties as members of the Jury Commission and where such duty is an additional judicial function directly connected with a part of the judicial system. Eagen v. State, 280 Ala. 438, 194 So.2d 842; Reeves v. State, 260 Ala. 66, 68 So.2d 14. Allegations in a motion to quash the venire and a plea in abatement that names of a large number of citizens who possess qualifications of jurors had been intentionally and unlawfully omitted from the jury roll and left out of the jury box from which roll and out of which box the names of jurors to try the defendant were taken constitutes mere conclusions and are insufficient to aver facts to show fraud in filling the jury box. Tiner v. State, 271 Ala. 254, 122 So.2d 738; Winbush v. State, 237 Ala. 153, 186 So. 145.
This is an appeal from a judgment of conviction of robbery. Punishment was fixed at fifteen years in the penitentiary.
Appellant timely filed a motion to quash the jury venire alleging, among other things, that the Board of Jury Supervisors (Jury Commissioners) have systematically excluded from the jury roll and jury box a particular class of individuals described as "working trade"; such as, farmers, miners, carpenters, and the unemployed. Further, that this action has led to a jury venire composed of "blue ribbon jurors" which do not represent a cross-section of the population of Montgomery County. This motion was denied by Judge Richard P. Emmet without a hearing and without affording appellant an opportunity to call witnesses in support of his allegations.
The court's failure to hear appellant on his motion to quash was error. Gibbs v. State, 44 Ala. App. 15, 200 So.2d 518; Thomas v. State, 277 Ala. 570, 173 So.2d 111.
Appellant also filed the following motion to recuse, which was denied by Judge Emmet:
"Comes now the Defendant in the above-styled cause and moves each of the Circuit Judges of the Fifteenth Judicial to recuse himself at the hearing on the Motion to Quash the Venire heretofore filed in the above-styled cause, and, as grounds for such motion, the Defendant avers, separately and severally, the following:
"1. That the Honorable Richard P. Emmet is presently a member of the Jury Commission of Montgomery County, Alabama.
"2. That the Honorable William F. Thetford is presently a member of the Jury Commission of Montgomery County, Alabama.
"3. That the Honorable Eugene Carter was for many years a member of the Jury Commission of Montgomery County, Alabama, and only recently (within the last six months) resigned as a member of said Jury Commission.
"4. That the Defendant intends to subpoena each of the three above-named Circuit Judges to appear and to testify on the hearing of the Motion to Quash the Venire heretofore filed in the above-styled cause."
In Reeves v. State, 260 Ala. 66, 68 So.2d 14, it was held that a trial judge should not preside in a case in which he is a material and necessary witness. Furthermore, the motion to quash the jury venire challenges the action of the members of the Board of Jury Supervisors of which the trial judge is a member.
Appellant also contends that Act No. 118, Local Acts of Alabama, 1939, p. 66, as amended by Act No. 536, Acts of Alabama, 1967, p. 1281, which created the Board of Jury Supervisors in Montgomery County, is unconstitutional because it violates § 105 of the Constitution of Alabama.
Our Supreme Court in Reeves v. State, supra, held that the act providing that Montgomery County Circuit Judges may be members of the jury commission does not violate § 105 of the Constitution. Neither does it violate § 150 of the Constitution. Eagen v. State, 280 Ala. 438, 194 So.2d 842.
Reversed and remanded.