55 So. 610 | Ala. | 1911
Proceeding under section 32 of the act of August 31, 1909 (Acts Special Session 1909, p. 317), the trial court named 70 as the number to constitute the special venire; and the order proceeds: “And it further appearing that 40 persons had been drawn on the regular juries for said week, the court thereupon in open court drew from the jury box as directed by law 30 names, being the number named in said order.” The record, however, shows that 50 names — not 40, as stated in the order — had been drawn for the regular juries for the week in which the case was set for trial, and that 48 persons named in that venire had been summoned. The result was that the defendant was required to join in the selection of a jury from a list of 78 names, instead of from a list of 70, as fixed by the order of the court. This was plain error, and under the system of limited peremptory challenges allowed by the law as it
In our recent cases of Jackson v. State, 171 Ala. 38, 55 South. 118, and Harris v. State, Infra, 55 South. 609, we held that prejudicial and reversible error was committed in constituting the venire of persons drawn and summoned less in number than the number fixed by the order of the court. We intend of course, no departure from that rule.
Neither the defendant’s motion to quash the venire nor any evidence that may have been offered in support thereof are shown by the bill of exceptions. The action of the court on the motion cannot be reviewed.
Affirmed.