Clarke v. State

57 So. 1024 | Ala. Ct. App. | 1912

de GRAFFENRIED, J.

The appellant was indicted for murder in the first degree. She was tried by a jury, was convicted of manslaughter in the second degree, and appeals.

The record shows that, after the appellant had been arraigned and had pleaded to the indictment, the trial court made an order directing the sheriff to summon 61 persons to constitute the venire from which the jury to try the appellant was to be selected, “being the 25 persons whose names have just been drawn, and the 86 persons drawn and summoned for regular jurors for the second week of court.” The record further shows that, while the names of 36 persons had been drawn as jurors for the second week of court, only 34 of the persons whose names had been so drawn had been or toere summoned by the sheriff as jurors for said week. The requirements of the statute (Acts Sp. Sess. 1909, p. 319, § 32) are that the venire, for the trial of a capital case, shall be inclusive of those “drawn and summoned on the regular juries for the week set for the trial,” and, only 34 of the 36 jurors drawn for the second week having been summoned by the sheriff, the venire from which the jury was drawn to try this defendant did not contain the legal number of names as fixed by the order of tlie court. Instead of having a venire composed of 61 persons, as fixed by the order of the court, the appellant’s venire consisted of only 59 persons. Her jury, therefore, was drawn from an illegal venire, and, under the uniform decisions of this court and of the Supreme Court, the judgment in this case must be reversed.—Elijah Jackson v. State, 171 Ala. 5, 55 South. 118; Reynolds v. State, 1 Ala. App. 24, 55 South. 1016; Russell v. State, 1 Ala. App. 67, 55 South. 1023; Odom v. State, 1 Ala. App. 68, 55 South. 546; Jobe v. State, 1 Ala. App. 112, 55 South. 430; Smith v. State, 1 Ala. App. 140, 55 South. 449; Mills v. State, 1 Ala. App. 76, 55 South. 331;; Welch v. State, 1 Ala. App. 144, 56 South. 11.

Reversed and remanded.