Special and Petit Juries in Capital Cases.

guilty or such waiver of special venire shall be entered of record, and, in either event, no special jury or venire shall be necessary for the trial of such cause; but the trial of the cause shall be had and the question of the degree of guilt must be ascertained and the punishment fixed by a jury to be selected from the panel of regular petit jurors organized by the court during the week such case is set for trial, in the same manner as juries are organized for the trial of felonies not capital; and the state and the defendant shall be allowed the same number of peremptory challenges as they are respectively allowed in the trial of felonies not capital.

7265. (5005) What constitutes venire for the trial of capital case. When the day set for trial of a capital case or cases is a day of the same week in which the special jurors are drawn as provided in the second preceding section, the special jurors so drawn, together with the panel of petit jurors organized for the week, shall constitute the venire from which the jury or juries to try such case or cases shall be selected; and when the day set for the trial is a day of a subsequent week of the term, the special jurors so drawn, together with the jurors drawn for such subsequent week, shall constitute such venire.

(Feb. 28, 1887, p. 151, § § 10, 11.) That name of juror was drawn but not summoned no ground for quashing indictment.-Harris v. State, 144 Ala. 61 (40 So. 571). The provision of the statute that the residence and occupa tion 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 (22 So. 162). The fact that the occupation and precincts of the jurors are indicated by ditto marks, or the fact that the christian names of jurors were not written in full but indicated by initial letters, or that some of the names were erased, etc., no ground for quashing.-Cole v. State, 105 Ala. 76 (16 So. 762). Variance between name of deceased in copy of indictment served on defendant and the original.-White v. State, 136 Ala. 58 (34 So. 177). Section 7840 (5273) as to service of copy of indictment and list of jurors on defendant does not conflict with this section.-Burton v. State, 107 Ala. 108 (18 So. 284). Cor respondence between indictment and copy served on defendant.-Brown v. State, 109 Ala. 70 (20 So. 103). Talesmen; mistake of names.-Smith v. State. 145 Ala. 17 (40 So. 957). Names of jurors not summoned properly omitted from list served on defendant.-Collins v. State, 137 Ala. 50 (34 So. 403); Burton v. State, 107 Ala. 108 (18 So. 284). Persons summoned at time juries were being organized to fill places of persons who had been excused, placed upon list.Smith v. State, 136 Ala. 1 (34 So. 168). When the word "drawn" is used in the sense of selected.-Smith v. State, 136 Ala. 1 (34 So. 168). Jurors drawn for the second week but not summoned will not be placed on list.-Smith v. State, 133 Ala. 73 (31 So. 942). Jurors not summoned under venire facias for regular jurors, but who were talesmen, need not be placed on list served on defendant.-Mitchell v. State, 129 Ala. 23 (30 So. 348). Failure to summon all jurors drawn no ground for quashing indictment; the fact that juror summoned was excused by the court no ground for quashing venire.-Plant v. State, 140 Ala. 52 (37 So. 159). Where some of the jurors drawn for the week appear but are excused and others are substituted for them, the names of those substituted must be placed upon the list of special venire to be served upon the defendant.-Brown v. State, 128 Ala. 12 (29 So. 200). That one of the jurors on the venire was a member of the grand jury that found

Special and Petit Juries in Capital Cases.

the bill no ground for quashing indictment.-Birdsong v. State, 47 Ala. 68. Defendant not entitled to list of persons summoned to supply the place of the regular veniremen who failed to appear.-Kimbrough v. State, 62 Ala. 248. No ground of objection that some of the special jurors are not summoned.-Parsons's case, 81 Ala. 577 (2 So. 854); Webb's case, 100 Ala. 47 (14 So. 865). As to regular jurors, venire served on defendant should contain only the names of those drawn and summoned; or, when the order for special jury made same week of day set for trial, only the names of those in attendance.Lee's case, 55 Ala. 259; Floyd's case, 55 Ala. 61; Jackson's case, 77 Ala. 18; Morrison's case, 84 Ala. 405 (4 So. 402); Goley's case, 87 Ala. 57 (6 So. 287); Thomas's case, 94 Ala. 74 (10-So. 432); Ryan's case, 100 Ala. 105 (14 So. 766); Burton's case, 107 Ala. 108, 133 (18 So. 284) (head note misleading). Motion to quash venire must be made before trial entered upon.-Thomas's ease, 94 Ala. 74 (10 So. 432); Ryan's case, 100 Ala. 105 (14 So. 766). When venire quashed on motion of solicitor, made before service.-Wilkins's case, 112 Ala. 55 (21 So. 56). See § 7840 (5273).

7266. (5006) (4321) (4875) (4174) (622) Penalty on defaulting juror.-Any person summoned as a juror under the provisions of the last section, who fails to attend, or refuses to serve, must be fined not less than fifty dollars, which may be reduced by the court, if the circumstances justify reduction; such fine must be collected and applied in the same manner as fines imposed on jurors in other cases.

7267. (5007) (4322) (4876) (4175) (623) Mistake in juror's name no cause to quash or continue; others substituted.—A mistake in the name of any person summoned as a juror for the trial of a capital offense, either in the venire or in the list of jurors delivered to the defendant, is not sufficient cause to quash the venire, or to delay or continue the trial, unless the court, in its discretion, is of opinion that the ends of justice so require; but the court must in such case direct the names of such persons to be discarded, and others to be forthwith summoned by the sheriff from the qualified citizens of the county, to supply their places; and the persons so summoned shall be disposed of in the same manner as if they had been summoned in the first instance.

Where mistake in names occurs, court may discard them and supply their places with other persons summoned by the sheriff.-Collins v. State, 137 Ala. 50 (34 So. 403). Court has power to correct mistake by discarding the name of person drawn and ordering another forthwith summoned.-Cawley v. State, 133 Ala. 128 (32 So. 227). An alleged mistake in the names of jurors, either in the venire or the copy served on defendant is not sufficient to quash the venire.-Kimbrell v. State, 130 Ala. 40 (30 So. 454). Discrepancies between names on copy of list served on defendant and the original venire, no ground for quashing.-Bell v. State, 115 Ala. 25 (22 So. 526). When presumption indulged that name on list was name drawn.-Goodwin v. State, 102 Ala. 87 (15 So. 571). No objections to venire on account of disqualification of jurors summoned. Roberts's case, 68 Ala. 515; Field's case, 52 Ala. 348. Summoning less number than named in venire; effect of duplicating name in the list.Roberts's case, 68 Ala. 515. Mistake in names of jurors not sufficient ground to quash venire.-Roberts's case, 68 Ala. 156; Floyd's case, 55 Ala. 61; Rash's case, 61 Ala. 89; Fields's case, 52 Ala. 348; Hall's case, 51 Ala. 9; Johnson's ease, 47 Ala. 10; Hubbard's case, 72 Ala. 164; Jackson's case, 76 Ala. 26; Williams's case, 81 Ala. 1 (1 So. 179); McKee's case, 82 Ala. 32 (2 So. 451);

Special and Petit Juries in Capital Cases.

Gibson's case, 89 Ala. 121 (8 So. 98); Jones's case, 104 Ala. 30 (16 So. 135). A Juror drawn as H. Dudley P. whose real name is Hiram W. P., cannot be put upon defendant.—Martin v. State, 144 Ala. 8 (40 So. 275). Mistake in name of juror or act of court in discarding name held no ground for quashing venire.— Skipper v. State, 144 Ala. 100 (42 So. 43). Mistake or change in name, as being classified as regular or special in the absence of fraud, will not work a reversal.-Coleman v. State, 145 Ala. 13 (40 So. 977).

7268. (5008) (4323) (4877) (4176) (624) Substitutes peremptorily challenged, but no list served.-The defendant is not entitled to a list of the persons summoned under the provisions of the last section, but may peremptorily challenge any of them, if drawn on the jury for his trial, in addition to the other peremptory challenges allowed him by law.

7269. (5009) (4324) (4878) (4177) (625) Manner of drawing jury; talesmen.-On the trial of a person charged with a capital offense, the names of the jurors summoned for his trial, as well as the names of the regular jurors in attendance, must be written on slips of paper, folded or rolled up, placed in a box, or some substitute therefor, and shaken together; and such officer as may be designated by the court must, in his presence, draw out such slips, one by one, until the jury is completed; if all such slips are drawn, and the jury is not made up, the court must direct the sheriff to summon, from the qualified citizens of the county, twice the number of persons required to complete the jury, whose names are also to be written on slips of paper, deposited and drawn as herein prescribed; and if such number is exhausted, the same proceedings must be had until the jury is complete.

(Clay's Digest, p. 459, § 54; Feb. 28, 1887, p. 151, § 10.) Court need not call aloud the names of persons as they are drawn from the jury box, if the defendant and his attorneys are allowed to see the names and the slips drawn.— Parnell v. State, 129 Ala. 6 (29 So. 860). Only the names of the special jurors summoned and the names of the regular jurors in attendance should be written on slips or placed in the box.-Kimbrell v. State, 130 Ala. 40 (30 So. 454). Discretionary with court to have names of jurors called from clerk's desk or outside.-Hall's case, 51 Ala. 9; Waller's case, 40 Ala. 325. Court not obliged to send for absent juror at defendant's request; but otherwise, if such juror in jail.-Johnson's case, 47 Ala. 10. Where name of a juror inadvertently left out of box, court may on discovering fact have the slip containing his name put in the box and have it drawn therefrom.-Stone v. State, 137 Ala. 1 (34 So. 629); Morrison v. State, 84 Ala. 405 (4 So. 402). Court cannot have the name of such juror put into the box with the names of other jurors who returned into court having been engaged in the trial of another cause, until his name is called and passed upon the venire has not been exhausted.-Stone v. State, 137 Ala. 1 (34 So. 629). What not error, where four of jurors in the venire were engaged as jurors in the trial of another cause at the time copy was served on prisoner.-Redd's case, 69 Ala. 255. Name omitted from box by mistake may be replaced and drawn before talesmen are summoned.Morrison's case, 84 Ala. 405 (4 So. 402). Order for talesmen need not appear of record; may be given orally.-Morrison's case, 84 Ala. 405 (4 So. 402).

Petit Jury and Talesmen; Arranging, Swearing and Challenging.

ARTICLE 6.

DUTY OF COURT TO ASCERTAIN QUALIFICATIONS BEFORE SWEARING JURORS. 7270.

7270. (5010) (4325) (4760) (4087) (537) Duty prescribed. (r.c.c.) -It is the duty of the court, before administering the oath prescribed by law to any grand, petit, or tales juror, to ascertain that such juror possesses the qualifications required by law; and the duty required of the court by this section shall be considered imperative.

See Toulmin's Digest, p. 495. (Mar. 17, 1875, p. 261.) Until one is sworn he does not become a juryman; allowing a juror before sworn to step to another part of courthouse no ground for discharge of jury.-Gerald v. State, 128 Ala. 6 (29 So. 614). Our statutes intend to secure not only a just verdict but a just mode of procedure and this cannot be done when the minds of the jury are influenced by a prevailing public prejudice against the prisoner.— Seams v. State, 84 Ala. 410 (4 So. 521). When objection that court failed to ascertain qualifications of jurors comes too late.-James's case, 53 Ala. 381. See Finley's case, 61 Ala. 201. Not essential that record should show a compliance with this section; presumption that court did its duty, and its judgment upon them a discretion not revisable.-James's case, supra. Court may excuse juror who cannot understand the English language.-Long's case, 86 Ala. 36 (5 So. 443).

ARTICLE 7.

PETIT JURY AND TALESMEN; ARRANGING, SWEARING AND CHALLENGING.

7271. (5011) (4326) (4763) (4090) (540) Petit jurors arranged for business.-To dispose of the petit jurors for the transaction of business, the clerk must, on the day on which they are summoned to attend, prepare by lot a list of their names; the first twelve must be sworn and called the first jury; the next twelve must then be sworn and called the second jury; and if there are any more petit jurors in attendance, they may be placed on a third jury, or put on either of the other juries, or excused for the term, as the court may direct. If a sufficient number of the persons summoned as petit jurors do not attend to constitute two juries, or, if for any cause

46-AC-VOL. III

Petit Jury and Talesmen; Arranging, Swearing and Challenging. the number is reduced below twenty-four, the court shall order the sheriff to summon from the qualified citizens of the county a sufficient number to complete the two juries; and the jurors may be transferred from one jury to another, as the convenience of the court, or the dispatch of business requires.

(Clay's Digest, p. 455, § 31; Feb. 28, 1887, p. 151, § 9.) Prior to February 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). This statute does not apply to a civil term for the trial of special cases.-Ward v. State, 78 Ala. 441. When a motion to quash venire comes too late.-Peters v. State, 100 Ala. 10 (14 So. 896).

7272. (5012) (4327) (4764) (4091) (541) Talesmen.When by reason of challenges or any other cause it is rendered necessary, the court may cause petit jurors to be summoned from the qualified citizens of the county to supply any deficiency on a regular jury, or to form one or more entire juries, as the occasion may require; such jurors are called talesmen, and must not be compelled to serve longer than the day for which they were respectively summoned, unless detained longer in the trial of an issue, or the execution of a writ of inquiry, submitted to the jury of which they are respectively members, or unless they are resummoned; and any such jurors. failing to attend, or withdrawing without leave of the court before the expiration of his term of service, may be fined twenty dollars by the court, for which a conditional judgment may be entered, to be made absolute as in the case of regular jurors.

(Aikin's Digest, p. 295, § 3; Clay's Digest, p. 457, § § 39, 40, 43.) This section by its terms relates to such jurors as are authorized by statute to be supplied from bystanders or from the county at large; they may be summoned for one day only subject to remain longer under conditions named by the statute.-Linnehan v. State, 113 Ala. 70 (21 So. 497). Defendant not entitled to have deficiency made up by drawing from jury box.-Crittenden v. State, 134 Ala. 145 (32 So. 273). When the court finds itself without juries it may supply the places under this section of the Code.-Askew v. State, 94 Ala. 4 (10 So. 657). Lenth of time required to serve.-Jackson v. State, 77 Ala. 18. See 128 Ala. 16 (29 So. 200). When defendant requests court to order more than necessary number of talesmen, he cannot afterward object to such order. Allen's case, 74 Ala. 557. Order for talesmen may be given orally, and need not appear of record.-Morrison's case, 84 Ala. 405 (4 So. 402).

7273. (5013) (4328) (4765) (4092) (542) Oath of petit juror. The following oath must be administered by the clerk, in the presence of the court, to each of the petit jurors: "You do solemnly swear (or affirm, as the case may be) that you will well and truly try all issues, and execute all writs of inquiry, which may be submitted to you during the present term (or week, as the case may be), and true verdicts render according to the evidence-so help you God;" and the same