Special Juries, and Regular Juries at Special Terms. ARTICLE 4. * SPECIAL JURIES, AND REGULAR JURIES AT SPECIAL TERMS. 7257-7261. SECTION. 7257. Special juries organized in default of regular. SECTION. 7259. Special grand jury at regular term. 7260. Grand jury at special term. 7258. Same; when venire quashed or regular jury discharged. 7257. (4998) (4316) (4761) (4088) (538) Special juries (r.c.c.) organized in default of regular.-If, in consequence of any neglect on the part of the jury commissioners, or from any other cause, no grand or petit jury is returned to serve at any term of the court, or no petit jury summoned for any week thereof, the court must draw from the regular jury box and, by an order entered on the minutes, direct the sheriff forthwith to summon eighteen persons qualified to serve as grand jurors, and such number as the court may direct to serve as petit jurors; and the persons so summoned, failing to attend, are subject to the same penalties as if they had been regularly drawn and summoned, to be recovered in the same manner; the court may supply any deficiency, as in other cases, and a jury thus organized is in all respects legal. First act of Dec. 7, 1811.-Toulmin's Digest, p. 496. (Clay's Digest, p. 454, § 26.) This statute authorizes special juries to be organized in default of regular juries, it does not provide for talesmen or to organize parts of venires. Linnehan v. State, 113 Ala. 70 (21 So. 497). Where commissioners failed to draw grand jury court supplies omission by ordering sheriff to summon eighteen persons; and irregularity in executing the order does not render the organization void.-Pickens v. State, 115 Ala. 42 (22 So. 551). Organization of special jury in absence of regular juries in the city court of Talladega.— Curry v. State, 120 Ala. 366 (25 So. 237). Prior to Feb. 28, 1887, a judge had no power to organize more than two juries of twelve men each for each week.Evans v. State, 109 Ala. 11 (19 So. 535). Ordering twenty-four instead of thirty is irregular but does not render the organization void.-Evans v. State, 109 Ala. 11 (19 So. 535). Indictment found by grand jury summonded and organized without authority is void.-O'Byrnes v. State, 51 Ala. 25. Power to organize another grand jury after venire has been quashed.-O'Byrnes v. State, 51 Ala. 25. Special act as to ninth judicial circuit construed authorizing judge to organize special grand jury.-Daughdrill v. State, 113 Ala. 7 (21 So. 378). How this chapter applies to criminal cases in city court of Talladega.Ragland v. State, 125 Ala. 12 (27 So. 983). Power of city court to hold special term; jurors for special terms how drawn for the city court of Mobile under acts of 1857-8.-Levy v. State, 48 Ala. 171; Wilson v. State, 52 Ala. 299. On failure of legal juries, for any cause, court may organize juries under this section. Kemp's case, 89 Ala. 52 (7 So. 413); Stewart's case, 100 Ala. 1 (13 So. 943); Hester's case, 103 Ala. 83 (15 So. 857); Wilkins's case, 112 Ala. 55 (21 So. 56). What sufficient order.-Battle's case, 54 Ala. 93. 7258. (4999) Same; when venire quashed or regular jury discharged. If for any cause a challenge to the array or a motion to quash the venire is sustained, the court must draw (r.o.c.) Amended, Aug. 9. 1907, p. 640, § 1. Special Juries, and Regular Juries at Special Terms. and order the summoning of a grand or petit jury, or both, as provided in the preceding section; and if, by reason of the discharge of the regular juries for the week, or any other cause, the services of a jury are required to expedite the business of the court, such jury may be supplied as provided in the preceding section. See note to preceding section. 7259. (5000) (4317) (4757) (4084) (534) Special grand jury at regular term.-When any indictable offense is committed during the session of the court, and after the grand jury has been discharged, the court may, in its discretion, draw from the jury box and cause an order to be entered on the minutes commanding the sheriff forthwith to summon eighteen persons thus drawn to serve as grand jurors; which order the sheriff must immediately execute, and the persons summoned by him must attend, and, if required, serve as grand jurors under the same penalties as are by law prescribed for persons regularly drawn and summoned as grand jurors; and from the persons so attending, with such others as may be necessary to supply any deficiency (to be summoned and drawn as in other cases), a special grand jury must be organized, sworn, and charged, as in other cases; and it is the duty of such special jury to investigate the offense, and to proceed thereon as a regular grand jury. (Clay's Digest, p. 454, § 24.) Except as here provided, the court has no authority to organize two grand juries at same term.-O'Bryan's case, 91 Ala. 16 (8 So. 559); O'Bryne's case, 51 Ala. 25. Special grand juries organized by the city court of Montgomery.-Lide v. State, 133 Ala. 43 (31 So. 953). Organization of special grand juries for the city court of Walker county.— Oakley v. State, 135 Ala. 15 (33 So. 23); s. c., 135 Ala. 29 (33 So. 693). Mistake in name of juror, when objection comes too late.-Longmire v. State, 130 Ala. 63 (30 So. 413); Kimbrell v. State, 130 Ala. 40 (30 So. 454). 7260. (5001) (4318) (4758) (4085) (535) Grand jury at special term.—A grand jury may be organized at any special or adjourned term of the circuit or city court whenever, in the opinion of the presiding judge, the public good requires it; such grand jury to be organized in the same manner and its proceedings to be governed in all respects by the same rules as by law provided for a grand jury organized at a regular term of the court. Power to organize grand jury at special term.-Floyd's case, 55 Ala. 61. See, also, as to how jurors for special term (of city court) may be drawn.Levy's case, 48 Ala. 171; Taylor's case, Ib. 180. And when motion to quash venire properly overruled in such case.-Levy's case, supra. Indictment found at special term and proceedings.-Harrington's case, 36 Ala. 236; Aaron's case, 39 Ala. 684. Power to hold special term for the city court of Mobile.-Wilson v. State, 52 Ala. 299. Special and Petit Juries in Capital Cases. 7261. (5002) Grand and petit jurors for special or adjourned term.-When a special or adjourned term of any court in which a jury is required is ordered, the clerk of the court shall forthwith notify the jury commissioners, who shall meet and draw the grand and petit juries, one or both, as may be ordered by the judge of such court, who may direct the number of petit jurors to be drawn; and the commissioners shall furnish a list of the names so drawn to the clerk of the court at least twenty days before the term, in the same manner as for a regular term; and the clerk shall issue to the sheriff the order summoning such grand and petit jurors as for a regular term, and the sheriff is subject to the same penalties for failing to summon such jurors as for failing to summon jurors to a regular term. (Feb. 28, 1887, p. 151, § 6; Feb. 28, 1889, p. 77, § 4.) SECTION. ARTICLE 5. SPECIAL AND PETIT JURIES IN CAPITAL CASES. 7262-7269. 7262. Court may fix trial of capital case for any subsequent day of term. 7263. Special jury in capital case; how drawn and summoned. 7264. Waiver of special venire in capital cases. 7265. What constitutes venire for the trial of capital case. SECTION. 7266. Penalty on defaulting juror. 7267. Mistake in juror's name no cause to quash or continue; others substituted. 7268. Substitutes peremptorily challenged, but no list served. 7269. Manner of drawing jury; talesmen. 7262. (5003) Court may fix trial of capital case for any subsequent day of term.-The court may, on any day of the term, fix the time for the trial of any capital case or cases for any subsequent day of the term. (Feb. 28, 1887, p. 151, § 11.) The record need not show service of the venire on the defendant, yet the order for the same must appear of record and it must appear that the defendant was personally in court; recitals in bills of exceptions cannot cure defects in record proper.-Lomineck v. State, 39 So. 676. Defendant may be arraigned during first or civil week of the term.Hall v. State, 130 Ala. 45 (30 So. 422); Goley v. State, 87 Ala. 57 (6 So. 287). Record must affirmatively show order fixing time for trial.-Spieer's case, 69 Ala. 159. Also personal presence of prisoner at such time.-Sylvester's case, 71 Ala. 17. 7263. (5004) Special jury in capital case; how drawn and summoned. When any capital case or cases stand for trial, the court shall, at least one entire day before the same are set for trial, cause the box containing the names of the jurors to be brought into the courtroom, and after having the same well shaken, the presiding judge shall then and there publicly Special and Petit Juries in Capital Cases. draw therefrom not less than twenty-five nor more than fifty of such names for each capital case, a list of which shall be immediately made out by the clerk of the court and an order issued to the sheriff to summon the persons so drawn to appear upon the day set for trial, in like manner and under like penalties as he is required to summon grand and petit jurors. If the names in the jury box should be exhausted before the completion of the drawing of such special jurors, the court shall direct the sheriff to summon from the qualified citizens of the county, the specified number of persons necessary to complete the number of special jurors ordered by the court. (Clay's Digest, p. 459, § 54; Feb. 28, 1887, p. 151, § 10.) An entry in the record that "the court in open court and in accordance with the law drew from the box, etc.,'' excludes the inference that any one but the judge drew the names.-Gray v. State, 39 So. 621, distinguished from Scott's case, 37 So. 366. 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). 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 venire.-Arp v. State, 97 Ala. 5 (12 So. 301). Directing sheriff to summon citizens of the county as jurors.—Welsh v. State, 96 Ala. 92 (11 So. 450). Where the record shows that the "court" drew the names of the special jurors it does not show that the "presiding judge' drew them. Scott v. State, 141 Ala. 39 (37 So. 366), Tyson, J., dissenting. The statute is mandatory and the record must affirmatively show a compliance.Scott v. State, 141 Ala. 39 (37 So. 366). Jury box must be exhausted before commissioners have any power or authority to fill another box.-Steele v. State, 111 Ala. 32 (20 So. 648). If the names of persons are drawn who are then serving for regular petit jurors, court should on motion of the solicitor quash the venire and proceed to draw another, but it is error for the court to put the names back in the box and proceed to draw another.-Cawley v. State, 133 Ala. 128 (32 So. 227). The fact that the list served on defendant does not designate which are the special jurors and which are the regular ones no ground for quashing the venire.-Cawley v. State, 133 Ala. 128 (32 So. 227). One of the special venire men serving on another jury.-Cole v. State, 105 Ala. 76 (16 So. 762). Special statutes authorizing one venire for two or more cases.-Cole v. State, 105 Ala. 76 (16 So. 762). The fact that a part of the special venire are engaged in the trial of another cause when the jury is being selected, no ground for quashing the venire.-Simmons v. State, 129 Ala. 41 (29 So. 929). The service of the copy of venire on defendant are ministerial duties of which the silence of the record raises no presumption.-Washington v. State, 81 Ala. 35 (1 So. 18). Orders showing defendant was present in court when the day was appointed for trial, and the number of special jurors fixed.-Milton v. State, 134 Ala. 42 (32 So. 653); Cawley v. State, 133 Ala. 128 (32 So. 227). The record must affirmatively show that the day was set for the trial and that a special jury was drawn.-Kinnebrew v. State, 132 Ala. 8 (31 So. 567). These facts cannot be omitted from the record under § 6256 (4325) of the Code of 1896.-Kinnebrew v. State, 132 Ala. 8 (31 So. 567). Record must show presence of defendant when the day was set for trial and that there was a drawing of special jurors.-Burton v. State, 115 Ala. 1 (22 So. 585). What record must affirmatively show to support conviction for capital punishment.-Burton v. State, 115 Ala. 1 (22 So. 585). No provision is made for summoning special venire where jury box is exhausted before entering upon the drawing of the special venire.-Sample v. State, 138 Ala. 259 (36 So. 367). Court no power to fill jury box.-Ib. One special Special and Petit Juries in Capital Cases. venire cannot be ordered for the trial of two or more capital cases.-Rambo 244, § 1. 7264. Waiver of special venire in capital cases.-At any Feb. 8, time before a special venire has been drawn for the trial of 1899, p. any capital case, if the defendant enters a plea of guilty or (roa) in writing waives the right of a special venire, such plea of |