94 Ala. 74 | Ala. | 1891
— The order made for summoning the venire in this case strictly conformed to the statute. The order setting the case for trial was made July 29, 1891. The day set for the trial was August 14, 1891. This vas during a week subsequent to the one in which the order was made, and consequently “the jurors drawn and summoned for such week”— the week during which the trial was to take place — were, by the statute, made a part of the venire from which the jury was to be organized. — Sess. Acts 1886-7, § 11; Grim. Code of 1886, p. 134, in note. The order conforming to the very letter of the statute, we do not think the City Court erred in
The motion to quash the venire, based on the ground stated above, being overruled, the organization of the jury and the trial were entered upon without further preliminary objection. After the trial was concluded, and the jury had returned a verdict of guilty, the defendant moved in arrest of judgment. The ground of the motion did not appear on the record, but arose as follows: Under the order to the sheriff to place on the venire the names “of the jurors drawn and summoned for the week” of the trial, that officer had placed the entire thirty-sis names drawn as petit jurors for that week. These constituted a part of the list served on the defendant. It was stated in the motion that five of the thirty-six, though drawn as jurors, had not been summoned. The venire for that week, and the sheriff's return upon it, proved this statement to be true.
Had that motion been made before the trial was entered upon, it should, and doubtless would, have been sustained. But it came too late. Such motion, not raising the question ■of the guilt or innocence of the accused, should always be made before the trial on the merits it is entered upon. Parties must not be permitted to speculate on the chances of a favorable verdict, and, failing, then fall back on some preliminary, ministerial error, not previously called to the attention of the ■court. We can not suppose, and do not charge, that such was the intention in this case, but the tendency of such practice is not favorable to a proper administration of the law. — 3 Brick. Dig. 264, §§ 163 et seq. Motions in arrest of judgment must, as a rule, rest on something apparent on the record. That which is available in arrest of judgment is, in general, equally available on error. There is nothing in the record before us to authorize the arrest of the proper judgment on the verdict rendered. — Banks v. State, 72 Ala. 522; Diggs v. State, 77 Ala. 68.
There is no error in the record, and the judgment of the City Court must be affirmed. The day appointed for the execution of the prisoner having passed, it is ordered and adjudged that the sentence of the law be executed on Friday, February
Affirmed.