Bell v. State

59 Ala. 55 | Ala. | 1877

MANNING, J.

— The fact that in the list of persons summoned, to serve as jurors in this cause which was delivered to defendant, a mistake in writing the name of Jno. M. Sims, instead of Jas. M. Sims, if such mistake was made, (which .seems doubtful), did not, under the circumstances set forth in the bill of exceptions, afford a legal cause why the judgment of the Circuit Court should be arrested. At the time the attention of the court was called to the supposed error, by counsel for the defendant, he said “if it was an error which could be waived, he was willing to waive it, but that he did not consider it such an error as could be waived by the prisoner.” No objection, however, was then otherwise, taken; nor was any motion founded upon the supposed error 'made before the verdict was rendered. James M. Sims, the ■person whose name was supposed to have been incorrectly written, upon being called, appeared and was- accepted by the defendant as a juror, and served as such.

There is no doubt- that a preliminary irregularity of this .sort can be waived. — See Paris v. The State, 36 Ala. 235; Miller v. The State, 45 Ala. 24; Mitchell v. The State, at this term. The court did not err in overruling the motion in arrest of judgment.

The judgment of the Circuit Court must "be affirmed. And it is here adjudged that the execution of the sentence of that -court be carried into effect according to the terms thereof. Let the judgment of this court be certified without delay to said Circuit Court.