Smith v. State, 155 Ala. 76

Smith v. State

155 Ala. 76

Ala.

1908

Check Treatment

DOWDELL, J.

The jurors Allen and Norman were substituted jurors under tbe provisions of section 5007 of tbe Criminal Code of 1896. Tbe challenges of these jurors by tbe defendant were not chargeable to tbe defendant in estimating tbe 21 challenges to which be was entitled by section 5015. Section 5008 provides as follows : “Tbe defendant is not entitled to a list of tbe persons summoned under tbe provisions of tbe last section [section 5007], but may peremptorily challenge any of them, if drawn on tbe jury for bis trial, in addition to tbe other peremptory challenges allowed by law.” By section 5015 tbe defendant in a capital case is allowed *7821 peremptory challenges. We see no escape from the holding that the peremptory challenges allowed by section 5008 are in addition to those given in section 5015, for so the law is plainly written. Excluding from the estimate the 2 challenges of Allen and Norman, the defendant had only 20 challenges when the juror Belue was drawn. The court below refused the defendant the right of challenge of this juror. In this the court was in error, for which error the judgment must be reversed.

Reversed and remanded.

Tyson, C. J., and Anderson and McCLELLAN, JJ., concur.