Boggs v. State

45 Ala. 30 | Ala. | 1871

PETEES, J.

The constitution of the State gives the right of trial by jury, and the legislature has prescribed how this jury shall be summoned and selected. — Const. Ala. 1867, Art. 1, §§ 8,12; Eev. Code, § 4173. The manner of drawing each member of the jury until the jury is made up, and the number and causes of the challenges, are all carefully designated by law. — Eev. Code, §§ 4177, 4178, 4179, 4180, 4182, 4188. The rules thus laid down are peremptory, and it is the right of the accused to have each strictly complied with. They are a portion of the formalities which constitute a proceeding “ by due process of law.” If it were permitted to disregard one of these formalities, without the consent of the accused, all might be set at naught. This has never been the construction given to these important statutes. — Brister v. The State. 26 Ala. 107; McAllister v. The State, 17 Ala. 434; Parsons v. The State, 22 Ala. 50. A juror who is physically unable to sit upon the jury, “ may be excused on his own motion, or at the instance of either party.” — Rev. Code, § 4184; James Lyman v. The State, Jan. T. 1871. But the court is not.authorized to reject him except for some of the reasons given in the statute, and in the manner prescribed by law, without the consent of the accused. — McGauley v. The State, 26 Ala. 135. Here the reasons upon which the juror was rejected, and the manner of the rejection, were not such as were allowed by law. The court therefore erred in its action in this particular.

Let the judgment of the court below be reversed and the cause remanded for a new trial. But if the accused, said Joseph M. Boggs, has been committed to the penitentiary, the proper order will be made authorizing the sheriff of Randolph county to have said Boggs delivered to him by the warden of the penitentiary, and by him remanded to the jail of said county of Randolph, and by him kept until discharged by due course of law.