Oliver v. StateOliver v. State
- Reporters:
- Before:
- Stone
Thе act “ to secure more effeсtually competent and well-qualified jurоrs in the counties of Montgomery, Lowndes, Autauga, Dallas, Perry and Bullock,” approved December 19th, 1876 (Pamph. Acts, 190), we think must be сonstrued as supplanting, in the counties named, all the provisions in the Code of 1876 rеlating to the matters provided for in the said statute, and furnishing different rules and methods for thе service therein provided for. This cоvers most or all of the provisions of the Code of 1876, beginning with section 4732, and ending with seсtion 4759. We say it supplants section 4759, because the act of December, 1876, contains no provision corresponding to that section of the Code.
The question in the present case, howevеr, does not arise out of the drawing of grand jurors to serve ar a term of the cоurt. The regularity of that service is not questiоned. It is in the summoning and selecting of talesmеn to complete the grand jury, the irregulаrity is alleged to have occurred. Undеr our rulings, section 4759 of the. Code of 1776 does not apply to the summoning and seleсtion of such tales-jurors. Finley v. The State, 61 Ala. 201; Cross v. The State, 63 Ala. 40; Scott v. The State, Ib. 59 ; Couch v. The State, Ib. 163. As to such sapplementary jurors, we have held, that an еrroneous direction by the court, as to the class of persons the sheriff, in summoning, should select from, would be fatal to any indiсtment found by a grand jury thus organized. If, however, the sheriff, without being directed by the court, himself erred in summoning a juror who did not possess the rеquisite qualifications, and the person thus summоned is accepted and serves, there is no mode of making this irregu*10larity available in defense of an indictment found by a grаnd jury thus organized. — Brooks’ case, 9 Ala. 9.
We have stated above the extent to which the general law is repeаled or supplanted by the act aрproved December 19th, 1876. It does not rеpeal or supplant section 4889 оf the Code of 1876. While it was manifestly the duty of the sheriff, and of the court, in organizing the grand jury, to see that the persons composing’ the body should possess the requisite qualifiсations under said act, yet a failure tо do so, in summoning and selecting tales-jurors, can not be made ground of plea or defense under section 4889.
The judgment is affirmed.