Fletcher v. State

Supreme Court of Alabama

Fletcher v. State

66 So. 148, 188 Ala. 1, 1914 Ala. LEXIS 280

Supreme Court of Alabama·Decided July 25, 1914·Published·Cited by 8 cases

Opinion

PER CURIAM.

We may concede, without deciding, that section 32 of the act of 1907, special session, page 63, was not repealed by the local act of 1911, page 315, and that the defendant had to demand a jury as there provided, yet we are of the opinion that the defendant substantially Complied with this requirement.—Freeman v. Bridges, 123 Ala. 287, 26 South. 512. It is true that it affirmatively appeared in the case supra that the bond upon which the demand was made was returned and filed Avith the clerk, but section 6291 of the Code of 1907 required, the sheriff to return the bond in question to the clerk, and, this being a ministerial act, the laAV presumes that the sheriff discharged his duty.—Guesnard v. L. & N. R. R. Co., 76 Ala. 453; Smith v. State, 88 Ala. 73, 7 South. 52; Mechem on Public Officers, § 579. The Court of Appeals erred in holding that the defendant did not show a legal demand for a. jury, and was therefore not entitled to one in the trial court, and the judgment of affirmance is reversed, and the cause is remanded to the Court of Appeals.

Reversed and remanded.

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PER CURIAM.

We may concede, without deciding, that section 32 of the act of 1907, special session, page 63, was not repealed by the local act of 1911, page 315, and that the defendant had to demand a jury as there provided, yet we are of the opinion that the defendant substantially Complied with this requirement.—Freeman v. Bridges, 123 Ala. 287, 26 South. 512. It is true that it affirmatively appeared in the case supra that the bond upon which the demand was made was returned and filed Avith the clerk, but section 6291 of the Code of 1907 required, the sheriff to return the bond in question to the clerk, and, this being a ministerial act, the laAV presumes that the sheriff discharged his duty.—Guesnard v. L. & N. R. R. Co., 76 Ala. 453; Smith v. State, 88 Ala. 73, 7 South. 52; Mechem on Public Officers, § 579. The Court of Appeals erred in holding that the defendant did not show a legal demand for a. jury, and was therefore not entitled to one in the trial court, and the judgment of affirmance is reversed, and the cause is remanded to the Court of Appeals.

Reversed and remanded.

Fletcher v. State, 66 So. 148, 188 Ala. 1, 1914 Ala. LEXIS 280 (Ala. 1914).

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