56 So. 11 | Ala. Ct. App. | 1911
Section 82 of the act approved August 31, 1909 (Gen. Acts Special Session 1909, p. 305), provides that, whenever a defendant stands indicted for a capital felony, a list of the jurors or venire for his trial, together with a copy of the indictment, must be “forthwith served on the defendant by the sheriff.” The defendant was indicted for a capital felony (rob
Section 7840 of the Code of 1907 provides that the service of the venire can be made on the defendant “or on counsel appearing for him.” Prior to this statute and under the provisions of the Laws of 1841 (Laws 1841, p. 174, § 58) and until the Code of 1886, § 4449, the statutory requirement was that the defendant must be served if in custody, otherwise service to be had upon his counsel. Before the laws of 1841, the service was required to be on the defendant (Toulmin’s Dig. Ala. p. 214 § 47) as is now required by section 32 of the act of 1909 supra, which amends section 7840 of the Code of 1907.
The provisions of all of these statutes have uniformly been held to be not directory merely but mandatory, a matter to which a defendant is entitled as a right, and a failure to strictly comply held to be fatal error, working a reversal of the case.— State v. McClendon, 1 Stew.
Section 32 of the present law (Acts 1909, p. 318) providing, among other things, for service upon the defendant of a list of the jurors and copy of the indictment in a capital case has been held to be a mandatory provision of the statute (Jackson v. State, 171 Ala., 55 South. 118), and it has become the settled law of the state under the construction of the different statutes on the subject, that the statutes granting this right to the defendant in a capital case to have a list of the jurors to try his case and a copy of the indictment, are mandatory, requiring a strict compliance with their terms. The present law limits the service to the defendant, and authorizes it to be had on no other person, and the statute being mandatory, a strict compliance with its terms is required, and the service on any other person is without authority of law.
The correctness of this construction is emphasized by a consideration of the history of the enactments on the subject. The law requiring the service to be-had upon the defendant, as first enacted, was changed so that the service was authorized to be made upon defendant’s counsel when the defendant was on bond, and this law was then changed so that it could be made upon the counsel appearing for a defendant in all cases, and, by the statute now in force (Act approved Aug. 31, 1909), the law-on the subject was again changed so as to require service upon the defendant alone. Under the well-known rules of statutory construction, we are precluded from giving the statute in question any other meaning than that it was intended to limit the right to serve the list of jurors and indictment upon the defendant and upon no other person.
Reversed and remanded.