Peacock v. State

57 So. 1020 | Ala. Ct. App. | 1912

WALKER, P. J.

It is not claimed in behalf of the appellant that the judgment appealed from is subject to reversal upon any other ground than the absence from the record of any order by the court for the service upon the defendant of a copy of the indictment. The claim is that the performance by the court of the duty of making such an order was not dispensed with by the act of the defendant in waiving in writing a special venire for the trial of the case. This claim cannot be sustained, under the construction given by the Supreme Court, in the case of McSwean v. State, 57 South. 732, of the provision of section 32 of the present jury law (Acts Sp. Sess. 1909, pp. 305, 317-320), which embodies the only existing requirement of law for the making of such an order by the court. The requirement of that statute of the making of such an order, as was in effect held in the case referred to, is now merely a part of the procedure to be followed by the court in the performance of the duty of making special provision for a jury for the trial of a capital felony; and when the performance of that duty is dispensed with in the mode authorized by the statute (Code, § 7264), the entire procedure, not merely a part of it, which it would have been incumbent upon the court to pursue, hut for such waiver, is thereby dispensed with. The indictment goes with the principal thing, of which it formed a part. A special venire having been waived by the defendant, the failure of the court to make an order for the service upon him of a copy of the indictment does not constitute a ground of reversal.

Affirmed.