128 Ala. 12 | Ala. | 1900
On the 8th day of March, which was Thursday of the first 'week of the term of the court, the defendant was arraigned upon tlie_indictment, and the 14 th day of March, being Wednesday of the foil owing-week of the term, was set for the tri^l of the case. A special venire■ was drawn consisting • of twenty-five names, which the sheriff was ordered to summon. The count made a further order directing a list of the names to be made and that the sheriff serve this list of special jurors, with a list of jurors drawn and summoned for the second week, and a copy of the indictment upon the defendant one entire day before the day set for the trial. These orders appear it-o” have been complied with. On the day set for the trial, on motion of defendant, the renii'e was quashed, and Friday, the 16th, of the same week was set for the trial of the case. Again a special venire consisting of twenty-five special jurors was drawn and an order issued to the sheriff to summon them. And a like order entered directing a list of the names to be made out, which was done and the sheriff directed to serve upon defendant this list of special jurors, ¡together with the panel -of petit jurors organized for the week, and a copy of the indictment one entire day before the day set for the trial. These proceedings were in compliance with the statutes regulating them. Code, §§ 5004, 5005, 5273.
On Friday when the case was called for trial the defendant again moved the court to quash the venire upon several grounds. Among the'grounds,there are several which urge the objection that the list of jurors 'served upon defendant does not contain all the names of the
The record shows that there were upon the venire of jurors for the second Aveek twenty-six names all of whom were summoned and appeared when the juries, for the week were organized. Of this number four Avere excused by the court for sufficient reasons shOwn, reducing the number to twenty-two. In order to complete the panels Hill and Dickson were summoned, sworn and empanneled as jurors for the week. They constituted a portion of the panel of petit jurors organized for the Aveek, and their names should luive been upon the list served upon the defendant. Hill and Dickson were not talesmen but Avere regular jurors for the week. The case of Jackson v. The State, 77 Ala. 1, construing section 4763 of the Code of 1876, is not an authority against this proposition. Section 4763 made no provision for completing the juries in the eAmnt the panels Avere reduced beloAV the requisite number. Resort had to be had to section 4764 for that purpose, and that section only provided for the summoning of talesmen avIio could not be required to serve longer than one day.
The offer of the court while the names Avere being drawn under section 5009 of ¡the Code, to put these two names in the box to be drawn, cannot cure the error committed in leaving [their names off the list Avhich avus served upon the defendant. He Avas entitled to have them served upon him or on counsel appearing for him at least one entire day before the day set for the trial of the cause. This is the plain mandate of the statute and it must be obeyed. — Code, § 5273. If these íavo names could be omitted, then any number could be, and if any number could, all eouid be. So by a process of diminution, if allowed, the statute would be abrogated.
There was no error in the refusal of the court to discard the names of the jurors when drawn for the purpose of making up the jury to try the case and to order the sheriff to summon others to supply their places, because the names of these persons Avere shoAvn by the initial letters of their names instead of by their full names.
For the error pointed out the judgment is reversed and the cause remanded.
