| Ala. | Feb 3, 1910
Rehearing
It has been suggested for the first time upon this application that the jury that tried this case was drawn and organized under the act of 1907 (Loc. Acts 1907, p. 238), which was declared unconstitutional in the case of Crain v. The State, 166 Ala. 1" court="Ala." date_filed="1910-02-10" href="https://app.midpage.ai/document/crain-v-state-7364875?utm_source=webapp" opinion_id="7364875">166 Ala. 1, 52 South. 31. It is true that said act has been condemned ; but the record in the present case shows a compliance with the law as it existed before the attempted enactment of 1907, both as to the drawing and ordering of the venire an d the return of the sheriff. ■
It is insisted, however, that the minute recital shows the special jury was drawn by the court, instead of the judge, and falls within the influence of the case of Scott v. State, 141 Ala. 39" court="Ala." date_filed="1904-11-15" href="https://app.midpage.ai/document/scott-v-state-6520484?utm_source=webapp" opinion_id="6520484">141 Ala. 39, 37 South. 366. The minute entry does recite that the jury was drawn by the court; but it also recites that “the court proceeds to publicly draw from the jury box as provided by law,” etc., which differentiates it from the Scott Case, supra, and brings it within the influence of the case of Gray v. State, 39 South. 621.
Counsel for appellant suggest that the Gray Case must not control the one at bar, for the reason that there are two judges of the court, and that “the court,” as used in the minute entry, did not mean the presiding judge. We think that, if the court proceeded as provided by law to draw the jury, the word “court” necessarily means the presiding judge, and not the other judge of said court.
There is nothing in this record to show that the law was not complied with as to the drawing, service of copy of venire, and organization of the jury.
The application must be overruled.
Lead Opinion
The record shows that the motion for a severance was not made until some days after the defendant was arraigned and pleaded not guilty. The action of the trial court in refusing said motion will not, therefore, be revised upon this appeal—Rule 31, p. 1525, vol. 2, Code 1907; Hudson v. State, 137 Ala. 60" court="Ala." date_filed="1902-11-15" href="https://app.midpage.ai/document/hudson-v-state-6519936?utm_source=webapp" opinion_id="6519936">137 Ala. 60, 34 South. 854; Miller v. State, 130 Ala. 1" court="Ala." date_filed="1900-11-15" href="https://app.midpage.ai/document/miller-v-state-6519026?utm_source=webapp" opinion_id="6519026">130 Ala. 1, 30 South. 379; Austin v. State, 139 Ala. 14" court="Ala." date_filed="1903-11-15" href="https://app.midpage.ai/document/austin-v-state-6520176?utm_source=webapp" opinion_id="6520176">139 Ala. 14, 35 South. 879. Nor will the action of the trial court be revised for declining to receive the plea in abatement to the indictment and in overruling the motion to quash same, as they both came after the defendant had pleaded “not guilty” to the indictment.—Crawford v. State, 112 Ala. 1" court="Ala." date_filed="1895-11-15" href="https://app.midpage.ai/document/crawford-v-state-6516815?utm_source=webapp" opinion_id="6516815">112 Ala. 1, 21 South. 214; Moorer v. State, 115 Ala. 119" court="Ala." date_filed="1896-11-15" href="https://app.midpage.ai/document/moorer-v-state-6517179?utm_source=webapp" opinion_id="6517179">115 Ala. 119, 22 South. 592.
The judgment of the criminal court is affirmed.
Affirmed.