It is suggested by the Attorney General that the Act approved September 29, 1923 (Laws 1923, p. 759), entitled "an act providing for the execution of convicts, condemned to death, by electrocution, prescribing the procedure in such cases; and repealing all laws or parts of laws in conflict herewith," was not constitutionally enacted, in that the journals of the House fail to show a concurrence of the House in the action of the Senate on the amendment proposed by the Governor.
The rule prevailing in this jurisdiction is that every enrolled act, regular on its face and found in the custody of the Secretary of State, authenticated by the signature of the President of the Senate and the Speaker of the House as prescribed by the Constitution, is prima facie evidence that it was constitutionally enacted, and this presumption can only be overcome by the contrary being affirmatively made to appear by the legislative journals. If the journals are merely silent on the matter, it must be presumed that the Constitution was in all respects followed, unless the silence is as to matters required to be entered in the journals. If the journals leave the matter in doubt, unless it relates to action which must affirmatively appear on the journals, the statute will be sustained. Ex parte Howard-Harrison Iron Co., 119 Ala. 484,24 So. 516, 72 Am. St. Rep. 928; Montgomery Beer Bottling Works v. Gaston, Judge, etc., 126 Ala. 425, 28 So. 497, 51 L.R.A. 396, 85 Am. St. Rep. 42; Board of Revenue of Jefferson County v. Crow, 141 Ala. 126, 37 So. 469; State ex rel. v. Porter,145 Ala. 541, 40 So. 144; State ex rel. Crenshaw v. Joseph et al.,175 Ala. 579, 57 So. 942, Ann. Cas. 1914 D, 248; Jackson v. State, 131 Ala. 21, 31 So. 380; 25 Rawle C. L. 898, §§ 150, 151.
It is sufficient to say that the court, sitting in banc, has examined the journals of both houses, and notwithstanding it appears that a clerical error appears in the message of the Senate to the House as recorded on the House Journal, relating to the section number of the bill dealt with by the amendment suggested by the Governor, it affirmatively appears that the Governor's message showing the correct number, accompanied the Senate message; and when the record is construed as a whole it appears with requisite certainty that the two houses were in concurrence on the amendment, and that the law was constitutionally enacted. *Page 363
The appellant's contention, now made, is that the Act of September 29, 1923, repeals section 7648 of the Code of 1907, authorizing a resentence of convicts in certain cases, and hence there is no law under which the circuit court is authorized to change the sentence pronounced in the judgment directing the sentence to be executed by hanging to one directing the sentence to be executed by electrocution.
We deem it proper to say that what was said in the original opinion with reference to the repeal of section 5295 of the Code of 1923 was on the mistaken assumption that what appears as section 5320 in printed volume 2 of the Code of 1923 was in the manuscript prepared by the code commissioner when that document was adopted as the Code of Alabama, by the Act approved August 17, 1923 (Laws 1923, p. 127). But on further examination of the question, we find this is not the true state of the law, as that section was merely printed in the Code under authority of section 4 of the act adopting the Code, and hence the Act of September 29, 1923, providing for the electrocution of convicts sentenced to death, must be interpreted in the light of its own provisions, and the provisions of sections 7 and 22 of the Constitution, and section 5531 (§ 7805, Code of 1907), Code of 1923. The last-mentioned section of the Code provides:
"No penal act shall take effect until sixty days after the approval thereof, unless otherwise specially provided in the act."
In determining when this act took effect, a summary of its provisions is useful.
Section 1 provides for the execution of death sentences by electrocution, prescribing the time within which execution may be fixed by the court.
Section 2 names the executioner up until and including January 1, 1927, as the sheriff, or his deputy in case of his absence or disability, and in case of their disability, such persons as may be appointed by the board of convict supervisors.
Section 3 provides for the issuance of the death warrant and its disposition.
Section 4 prescribes the duty of the sheriff and his compensation for transferring the convict to "Kilby prison at Montgomery."
Section 5 provides the place and method of confinement of the convict pending his execution.
Section 6 prescribes the place of execution.
Section 7 provides who may be present to witness the execution.
Section 8 provides for resentence in case of escape and rearrest after date fixed for execution.
Section 9 provides for execution if the arrest is before the date fixed for execution.
Section 10 provides for the procedure by the officers in case of respites granted by the Governor.
Section 11 provides:
"On or before the 1st day of October, 1926, the board of convict supervisors shall begin the construction of such necessary room or building as may be required to carry out the provisions of this act, and shall continue such construction until said room or building is completed; and said board of convict supervisors shall also, on or before the said 1st day of October, 1926, contract for the purchase of such necessary appliances as may be required to carry out the provisions of this act; and when the execution of a person sentenced to thepunishment of death is set for a day subsequent to the last dayof February, 1927, the execution of such sentence must be asprovided in this act; but when the execution of such sentenceis set for a day prior to the 1st day of March, 1927, theexecution of such sentence must be as now provided by article 7of chapter 278 of the Code of 1907." (Italics supplied.)
There can be no question that this is a penal statute, within the meaning of section 5531 of the Code, and unless it can be said that it is otherwise provided in the act, it took effect and was established and promulgated as a part of the law of the land on the 29th day of November, 1923. Washington v. Dowling (Fla.) 109 So. 588; Ross v. New England Mtg. Security Co.,101 Ala. 362, 13 So. 564.
This act, by reference, adopts all of the provisions of article 7 of chapter 278 of the Code of 1907, and in construing the act these statutes are to be treated and considered as if incorporated into and formed a part of the act, and when so construed it is complete in itself, providing the method for the execution of convicts condemned to death — by hanging up to and including the last day of February, 1927, and by electrocution after that date. Sloss-Sheffield S. I. Co. v. Smith, 175 Ala. 265, 57 So. 29; Savage v. Wallace, 165 Ala. 575,51 So. 605; Darrington v. State, 162 Ala. 63, 50 So. 396; Phœnix Assurance Co. v. Fire Department, 117 Ala. 631,23 So. 843, 42 L.R.A. 468; Cleveland v. State, 16 Ala. App. 336,77 So. 930.
Not only this, section 11 of the act specifically provides for the construction of the death room, and authorizes the purchase of the equipment "on or before the 1st day of October,1926," thus manifesting the legislative intent not to suspend its operation beyond the time provided by section 5531 of the Code.
There can be no doubt, therefore, that this act went into effect on the 29th day of November, 1923, and this being long prior to the commission of the offense for which appellant was convicted, neither the provisions of sections 7 and 22 of the Constitution of this state, nor those of the federal Constitution can be invoked to save the application of this statute to the appellant's case. In re Kemmler, 136 U.S. 436,10 S. Ct. 930, 34 L. Ed. 519; Aaron v. State, 39 Ala. 684; Eliza v. State, 39 Ala. 693; Luigi Storti v. Commonwealth,178 Mass. 549, 60 N.E. 210, 52 L.R.A. 520. *Page 364
There is no merit in the contention that the repeal of section 7648 of the Code of 1907 deprives the circuit court of the power to fix the date for the execution of the sentence of death as provided by law. That statute was designed to confer jurisdiction to resentence, where the proceedings in the case had terminated in a final judgment and jurisdiction had been lost by the final adjournment of the court for the term, but this rule has no application where the continuity of the proceedings is maintained by appeal and the cause remains in fieri, and by the judgment of the appellate court the cause is remanded to the trial court to complete the proceedings. In such cases, the mandate of the appellate tribunal is all that is necessary to confer jurisdiction on the trial court to proceed. Ex parte Adams, 187 Ala. 11, 65 So. 514; Minto v. State, 9 Ala. App. 95, 64 So. 369; State ex rel. Atty. Gen. v. Gunter, 11 Ala. App. 399, 66 So. 844; Wright v. State, 12 Ala. App. 253,67 So. 798.
Another view, it appears that before the alleged repealing statute was passed this section (7648) had been brought forward and adopted into the Code of 1923, and the subsequent repeal of that section as a part of the Code of 1907 did not repeal it as a part of the Code of 1923.
Aaron v. State, 40 Ala. 307, is not an apt authority. There the law authorizing the death sentence for the offense for which Aaron was convicted was repealed after the conviction and sentence and the time for the execution of the sentence had expired, and he was brought before the court for resentence. Not so here, the law authorizing the death sentence as well as the manner of its execution was in force at the time the appellant committed the murder and has so continued without change. He was put on notice by the law, if he delayed the execution of the sentence by appeal until after the last day of February, 1927, and he failed in his appeal, the sentence of death pronounced against him would be executed by electrocution.
The application is overruled.
All the Justices concur.