Feb. 9,

1897, p. 93, $1.

Amended,

1901, p.

142, § 1. (r.c.c.)

Qualification, Selection and Exemption of Jurors.

order on the minutes of the court in term time, declaring the jury box of the county illegal and irregular and requiring the jury commissioners of the county to assemble on a day and place, to be named in the order, to destroy the names which may be in the box, and refill the box in the manner required by law applicable to filling jury boxes in the respective counties. The commissioners, in the performance of their duties under the order, must proceed in all things according to the provisions of the jury law applicable to the respective counties for which the box is to be refilled.

7244. Notice to commissioners to assemble.-When said order is made the clerk of the court shall issue a writ to the sheriff commanding him to notify the jury commissioners of the county of the order made by the presiding judge and commanding them to assemble at once and refill the jury box. The box, when refilled under the order, shall be the legal jury box of the county.

7245. (4986) (4301) (4734) (4064) (514) Persons exempt Feb. 28, from jury duty.-The following persons are exempt from jury duty, unless by their own consent: Judges of the several courts; attorneys at law during the time they practice their profession; officers of the United States; officers of the executive department of the state government; sheriffs and their deputies; clerks of the courts and county commissioners; regularly licensed and practicing physicians or pharmacists; teachers while actually engaged in teaching; officers and regularly licensed engineers of any boat plying the waters of this state; train despatchers, railroad station agents, and telegraph operators, when actually in sole charge of an office.

(Clay's Digest, p. 451, § 5; Feb. 7, 1879, p. 117, 8 44; Mar. 1, 1881, p. 114, § 30; Feb. 26, 1887, p. 67; Feb. 10, 1891, p. 715; Mar. 6, 1876, p. 164; Feb. 25, 1871, p. 54; Feb. 18, 1867, p. 582; Nov. 11, 1861, p. 180.) That persons drawn as jurors were exempt or that they were absent from the state, that they were over the age of seventy, or that they had served during the preceding week, no ground for quashing the venire.-Arp v. State, 97 Ala. 5 (12 So. 301). Exemption from jury service subject to legislative regulation or repeal.—Dunlap's case, 76 Ala. 460. Exemption (in this case of over-age) is a personal privilege, which juror may waive, and not a disqualification.-Spigener's case, 62 Ala. 383; Williams's case, 67 Ala. 183. Coroner is competent juror, though may claim privilege not to serve.-Jackson's case, 74 Ala. 26. Court not authorized to discharge person regularly summoned on his simple statement that he is a fireman," without other proof of his right to claim benefit of statutory exemption of "members of incorporated fire companies."-Phillips's case, 68 Ala. 469. Party claiming exemption must prove it.-Ib. The claim of exemption is addressed to the court, and may be shown on voir dire of juror.-King's case, 90 Ala. 612 (8 So. 856). Member of state troops exempt.— Ib.; Simon's case, 108 Ala. 27 (18 So. 731).

7246. (4987) (4302) (4735) Exemptions on account of age made known by affidavit.-Any person selected as a grand or petit juror who is exempt on account of age, may make

Drawing and Summouing Jurors in General.

known his exemption by affidavit, setting forth the facts constituting such exemption, which he may forward to the sheriff, who shall file it in the court.

(Jan. 30, 1871, p. 43.)

7247. (4988) (4303) (4741) Incompetency of jurors to serve more than one week in each year; exceptions.-No person shall he competent to serve on a petit jury in any county in this state for more than one week in any year, unless actually engaged in the trial of a case submitted to them before the expiration of their week of service, in which case it shall be lawful for them to continue its consideration until they render a verdict or are discharged by the court; but in those counties in which there is a city court, persons may serve one week in each year in the city court, in addition to the week in the circuit court; nor shall any person serve as a grand juror for more than one term consecutively in any county in this state during any one year, whether in the city, circuit, or criminal court of such county; and it is hereby made the duty of the court to see, before any person is sworn as a juror, that he is not incompetent under the provisions of this section; but this section shall not apply to such persons as may be specially summoned to serve as jurors in a capital case, or to jurors summoned to attend the coroner on his inquest, but shall be held to apply to all talesmen in civil and criminal cases, as well as to the regular panel of jurors, and to all juries which may be summoned to pass upon issues of fact in proceedings in the courts of probate and courts of chancery.

(Mar. 15, 1875, p. 186, § § 1 and 2; amended Jan. 10, 1877, p. 141.) Service rendered as a juror within twelve months does not disqualify.-Harrison v. State, 144 Ala. 20 (40 So. 568). Excusing jurors not ground for quashing venire.-White v. State, 133 Ala. 122 (32 So. 139). It is no ground for quashing venire that some of the jurors have served on juries within twelve months.— Jones's case, 104 Ala. 30 (16 So. 135); Arp's case, 97 Ala. 5 (12 So. 301).

7248. (4989) Jurors drawn for ensuing year; slips destroyed. -On the next day after the adjournment of the last regular

Drawing and Summoning Jurors in General.

term of the court of county commissioners or session of the board of revenue held in each year, or as soon thereafter as practicable, the commissioners must proceed to draw from the jury box a grand jury for each regular term of any court to be held during the next ensuing year in the county for which a grand jury is required by law, not less than fifteen nor more than twenty-one persons for each grand jury, to be composed of persons duly qualified to serve as grand jurors; and next, the names of the requisite number of persons to serve as petit jurors for each of such courts, allowing not more than thirtysix nor less than thirty persons for each week of the term prescribed by law, or, if the term is unlimited, for each week during which, in the opinion of the clerk of the court, a jury will be required; and the juries for each week shall be drawn separately and successively, and every piece of paper, on which is written the name of the person so drawn, must be destroyed.

First act of Dec. 7, 1811.-Toulmin's Digest, p. 496. (Aikin's Digest, p. 298; Feb. 28, 1887, p. 151, § 4.) While it is the intention to have the residence and occupation of jurors set out on the list, it is not mandatory, but it is well for it to be observed if practicable.-Cook v. State, 134 Ala. 137 (32 So. 696). The provisions for drawing petit juries by the jury commission are not direc tory but mandatory, and if the juries drawn are illegal, they should be quashed upon proper motion.-Johnson v. State, 102 Ala. 1 (16 So. 99); Steele v. State, 111 Ala. 32 (20 So. 648); Wells v. State, 94 Ala. 1 (10 So. 656). The rule is different as to the drawing and empaneling of grand juries. See Linnehan v. State, 113 Ala. 70 (21 So. 497). (This rule was changed by the addi tion of last clause to § 4997 of the Code of 1896.)

7249. (4990) Sealed lists deposited with clerk.-The commissioners shall prepare a list of the names of the persons drawn as grand jurors, and a list of the persons drawn as petit jurors for each week of each term separately, and envelope and seal the same with an indorsement on the outside of the package showing the contents thereof, and deliver the same to the clerk of such court, who shall retain such package in his possession, without breaking the seal or opening the same, until thirty days before the term of the court for which such jurors are drawn.

(Feb. 28, 1887, p. 151, § 5.)

7250. (4991) Copy of each list to be deposited in the jury box. When the drawing has been completed and the lists of grand and petit jurors made out as provided in the preceding section, the commissioners must make a copy of each of such lists and deposit such copies in the box from which the names are drawn.

(Feb. 28, 1887, p. 151, § 6; Feb. 28, 1889, p. 77, § 4.)

7251. (4992) Box locked and sealed and deposited with judge of probate; key with county treasurer. When the

Drawing and Summoning Jurors in General.

copies of the lists have been deposited in the jury box as provided in the preceding section, such box must be securely locked and sealed and deposited in the office of the judge of probate, and the president of the board shall deposit the key to such box with the county treasurer, who shall keep the same; but the judge of the circuit, city, or criminal court shall have access to such box and key in order to compare the venire issued by the clerk with a copy of the list furnished to the clerk.

(Feb. 28, 1889, p. 77, § 4.)

7252. (4993) Venire for grand and petit jurors issued by clerk.—At least twenty days and not more than thirty days before the term of the court for which such lists are drawn, the clerk of the court shall open the package containing such lists and issue an order in writing to the sheriff commanding him to summon the persons drawn as grand jurors to appear and serve in that capacity, and a similar order for the persons drawn as petit jurors, specifying in the order the full name, place of residence, and occupation of each person, where known, and the particular week for which each petit juror is to serve.

(Feb. 28, 1889, p. 77, § 5.) While it is the intention to have the residence and occupation of jurors set out on the list, it is not mandatory, but it is well for it to be observed if practicable.-Cook v. State, 134 Ala. 137 (32 So. 696). Seal of clerk not required.-Maher's case, 1 Port. 265.

7253. (4994) (4311) (4745) (4073) (523) Executed and returned; when and how.-The orders for the summons of jurors, provided for in the preceding section, must be executed by the sheriff, or other person acting in his place, by giving personal notice to each person, or by leaving a written notice at the place of his residence with some member of his family, or some person residing in the same house, three days before the day appointed for the commencement of the court; and must be returned to the clerk of the court from which it issued, with the proper return thereon, by the day appointed for the meeting of the court.

(Aikin's Digest, p. 296, § 5; Clay's Digest, p. 452, § 11.) It is not material whether the writ of venire facias be directed to any sheriff of the State of Alabama" or to the sheriff of the particular county, the writ being executed and returned by the proper officer.-Steadman's case, 7 Port. 495; Phillips's case, 2 Ala. 297. Presumptions after plea and verdict that law was complied with, etc.-Williams's case, 3 Stew. 454.

7254. (4995) Sheriff negligently failing to summon juror guilty of contempt; punishment.-Any sheriff who negligently fails to summon any person whom he is commanded to summon as a juror, is guilty of a contempt of court and must be,

Drawing and Summoning Jurors in General.

by the court, fined not more than one hundred dollars for each person not summoned, and may also be imprisoned for not more than ten days. The return of any such person not found is prima facie evidence of such negligence on the part of the sheriff, and he shall be so punished by the court unless he shows good cause to the contrary.

(Feb. 28, 1887, p. 151.)

7255. (4996) (4312) (4746) Substitutes prohibited. No sheriff, deputy sheriff, bailiff, or other officer charged with the summoning of any jury, must accept or receive any substitute for any person who may be drawn to serve, or whom he may be directed to summon as a juror, but he must serve the person drawn or directed.

(Mar. 15, 1875, p. 186, § 2.)

7256. (4997) (4314) (4759) (4086) (536) What provisions directory merely. The provisions of this chapter in relation to the selection, drawing, and summoning of jurors are merely directory; and juries selected, drawn, and summoned, whether at an earlier or later day, must be deemed legal, and possess the power to perform all the duties belonging to grand and petit juries respectively; and no objection can be taken to any venire facias for a petit jury, except for fraud in drawing or summoning the jurors.

(Clay's Digest, p. 456, § 36.) Our statutes on the organization of grand juries do not violate the fourteenth amendment to the federal constitution as a discrimination against negroes; if they are denied a right or a privilege. it is done by the officers in executing the law and not by the law itself.Green v. State, 73 Ala. 26. The provisions for drawing petit juries by the jury commission are not directory but mandatory and if the juries drawn are illegal, they should be quashed upon proper motion.-Johnson v. State, 102 Ala. 1 (16 So. 99); Steele v. State, 111 Ala. 32 (20 So. 648); Wells v. State, 94 Ala. 1 (10 So. 656). The rule is different as to the drawing and empaneling of grand juries. See Linnehan v. State, 113 Ala. 70 (21 So. 497). (This rule was changed by the addition of last clause to § 4997 of the Code of 1896.) The provision of the statute that the residence and occupation of jurors be placed on list or slips is directory merely.-White v. State, 136 Ala. 58 (34 So. 177); Childress v. State, 122 Ala. 21 (26 So. 162). Effect of this section.Childress v. State, 122 Ala. 21 (26 So. 162); Baker v. State, 122 Ala. 1 (26 So. 194). Mistake in names no ground for quashing venire. Stewart v. State, 137 Ala. 33 (34 So. 818). No ground to quash venire because residence and occupation of jurors not set out on list.-Cook v. State, 134 Ala. 137 (32 So. 696). No objection will be sustained to a venire except for fraud in drawing and summoning.-Thompson v. State, 122 Ala. 12 (26 So. 141). The policy of the law is that grand and petit juries should be a selected class, not an indifferently summoned number from the whole body of electors; this discretion the statute confides to the officers of the county to be exercised according to their opinion or judgment.-Green v. State, 73 Ala. 26. Where there is no fraud, either in drawing or summoning jurors, and certainly where the defend ant is not prejudiced, venire should not be quashed.-Baker v. State, 122 Ala. 1 (26 So. 194). Section (prior to addition of last clause) construed.-Bales's case, 63 Ala. 30. Failure to record organization of grand jury; defects in copy of venire served on defendant.-Carlisle v. State, 39 So. 220.