66 Ala. 8 | Ala. | 1880
The act “ to secure more effectually competent and well-qualified jurors in the counties of Montgomery, Lowndes, Autauga, Dallas, Perry and Bullock,” approved December 19th, 1876 (Pamph. Acts, 190), we think must be construed as supplanting, in the counties named, all the provisions in the Code of 1876 relating to the matters provided for in the said statute, and furnishing different rules and methods for the service therein provided for. This covers most or all of the provisions of the Code of 1876, beginning with section 4732, and ending with section 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, however, does not arise out of the drawing of grand jurors to serve ar a term of the court. The regularity of that service is not questioned. It is in the summoning and selecting of talesmen to complete the grand jury, the irregularity is alleged to have occurred. Under our rulings, section 4759 of the. Code of 1776 does not apply to the summoning and selection 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 erroneous direction by the court, as to the class of persons the sheriff, in summoning, should select from, would be fatal to any indictment 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 requisite qualifications, and the person thus summoned is accepted and serves, there is no mode of making this irregu
We have stated above the extent to which the general law is repealed or supplanted by the act approved December 19th, 1876. It does not repeal or supplant section 4889 of 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 qualifications under said act, yet a failure to do so, in summoning and selecting tales-jurors, can not be made ground of plea or defense under section 4889.
The judgment is affirmed.
