40 So. 660 | Ala. | 1906
Section 5004 of the Code of 1896 requires, among other things, in capital cases, that a venire of not less than 25 nor more than 50 names shall be drawn by the presiding judge, etc. This statute is mandatory, and a compliance therewith must affirmatively appear in the record. — Scott v. State, 37 South. 366 ; Kinebrew v. State, 132 Ala. 8, 31 South. 567 ; Burton v. State, 115 Ala. 1, 22 South. 585 ; Spicer v. State, 69 Ala. 159.
The judgment entry in the case at bar does not show that a venire was drawn by the judge from the jury box as required by the above statute. It says the court ordered .the box to the brought into court and that 30 be drawn, and that proof was made that service of the venire so drawn, etc., was made upon the defendant; but there is nothing to show that the venire was drawn from the jury box by the judge, etc.
The judgment of the city court is reversed, and the cause remanded.
