Petit Jury and Talesmen; Arranging, Swearing and Challenging. also, when indictment charges capital offense, to a juror who says that he is not opposed to conviction on circumstantial evidence, but is opposed to punishing capitally on such evidence.-Jackson's case, 74 Ala. 26; Garrett's case, 76 Ala. 18; Tatum's case, 82 Ala. 5 (2 So. 531); Griffin's case, 90 Ala. 596 (8 So. 670). When error for court to exclude juror, after being accepted by both sides because of juror's contradictory statements, under oath, as to his qualifications.-Lyman's case, 45 Ala. 78. That party will not convict on circumstantial evidence ground for challenge.-Whatley v. State, 144 Ala. 68 (39 So. 1014). Peremptory challenges as to jurors convicting upon circumstantial evidence.-Calhoun v. State, 143 Ala. 11 (39 So. 378). Competency of jurors not determinable by character of evidence in particular trial.-Calhoun v. State, 143 Ala. 11 (39 So. 378).

7279. (5019) (4334) (4885) (4184) (632) Court may excuse unfit person.-Any person who appears to the court to be unfit to serve on the jury, may be excused on his own motion, or at the instance of either party.

Court may ex mero motu excuse two jurors who had tried defendant on a former trial.-Curtis v. State, 118 Ala. 125 (24 So. 111). This statute not intended to add to number of causes of challenge, but to allow juror to be excused, when physically unable or unfit to sit on jury until trial is ended.Lyman's case, 45 Ala. 72; Marshall's case, 8 Ala. 302. Power of court to excuse jurors, who, for reasons personal to themselves, should be exempt from serving; also may reject juror who admits cause of challenge.-Marshall's case, supra. Where a juror is sick, court may excuse him and supply his place.Sanford v. State, 143 Ala. 78 (39 So. 370).

7280. (5020) (4335) (4751) (4078) (528) Other excuses allowed by court.-The court may excuse from service any person summoned as a juror if he is disqualified or exempt, or for any other reasonable or proper cause, to be determined by the court.

(Clay's Digest, p. 458, § 50.) Court may discharge juror if he becomes sick or for other cause, if it is necessary in the opinion of the court to discharge him.-Powell v. State, 48 Ala. 154. But a juror excusing himself against the protest of the court is error for which judgment will be reversed.-Powell v. State, 48 Ala. 154. Where court excuses juror for the week upon an excuse, it will be held reasonable or for proper cause, where the excuse is not set out. Plant v. State, 140 Ala. 52 (37 So. 159); Thomas v. State, 124 Ala. 48 (27 So. 315); Webb v. State, 100 Ala. 47 (14 So. 865). Court may excuse a juror against the objection of defendant where juror swears that he is under twenty-one years of age.-Stewart v. State, 137 Ala. 33 (34 So. 818). Juror excused "for reasons deemed sufficient by the court," the reasons not being set out, not revisable on appeal.-Moseley's case, 107 Ala. 74 (17 So. 932). Error to excuse juror without cause, against defendant's objection.-Simon's case, 108 Ala. 27 (18 So. 731). Juror who cannot understand the English language may be excused.-Long's case, 86 Ala. 36 (5 So. 443). Power of court to excuse jurors for causes incapacitating them from continued service.Hawes's case, 88 Ala. 37 (7 So. 302); Webb's case, 100 Ala. 47 (14 So. 865); Yarbrough's case, 105 Ala. 43 (16 So. 758). For other causes.-Fariss's case, 85 Ala. 1 (4 So. 679); Riley's case, 88 Ala. 193 (7 So. 149); Maxwell's case, 89 Ala. 150 (7 So. 824); Cole's case, 105 Ala. 76 (16 So. 762); Dorsey's case, 107 Ala. 157 (18 So. 199). Policeman on active duty.-Pierson's case, 99 Ala. 148 (13 So. 550). Court may excuse juror for good and sufficient cause.Williams v. State, 144 Ala. 14 (40 So. 405). Excusing juror, if for good purpose, and not arbitrarily, will not work a reversal.-Barden v. State, 145 Ala. 1 (40 So. 948); Williamson v. Mayer, 117 Ala. 258 (23 So. 3).

The Grand Jury; Its Formation, Oath, Powers, Duties and Business. 7281. (5021) (4336) (4886) (4185) (633) Alien not entitled to jury of aliens.-An alien is not entitled to a jury composed, in part or wholly, of aliens or strangers.

ARTICLE 8.

THE GRAND JURY; ITS FORMATION, OATH, POWERS, DUTIES AND BUSINESS.

7282. (5022) (4337) (4753) (4080) (530) Grand jury; number; foreman.—At least fifteen persons must be sworn on the grand jury, one of whom must be appointed as foreman by the court; and if he is discharged or excused for any cause after the jury is sworn or charged, the court may appoint another in his place.

(Clay's Digest, p. 453, § 15.) An order directing the drawing of additional jurors to fill the place of those excused after organization, without an order first discharging those absent from the original panel, is illegal.-Peters v. State, 98 Ala. 38 (13 So. 334). What is sufficient judgment entry to show that indictments were properly returned and presented to the court.-Parnell v. State, 129 Ala. 6 (29 So. 860). Challenge of grand jurors by the party about to be indicted, not allowed.-Hughes's case, 1 Ala. 665. Instruction of court to grand jury can neither be excepted to nor assigned as error.-Perkins's case, 66 Ala. 457. Objection to indictment because record does not show appointment of foreman should be made by motion to quash, or to strike from file, before trial entered upon.-Dotson's case, 88 Ala. 208 (7 So. 259). Failure of

The Grand Jury; Its Formation, Oath, Powers, Duties and Business. minute entry to show formation and showing that grand jurors reduced to fourteen and that § 7283 (5023) was not complied with in making up deficiency is within the curative power of § 7886 (5289).—Shirley v. State, 144 Ala. 35 (40 So. 269).

7283. (5023) (4338) (4754) (4081) (531) If fifteen do not appear, or number reduced, how supplied.—If fifteen persons, duly qualified to serve as grand jurors, do not appear, or if the number of those who appear is reduced below fifteen by reason of discharges, or excuses allowed by the court, or by any other cause, the court must cause an order to be entered on the minutes, commanding the sheriff to summon from the qualified citizens of the county twice the number of persons required to complete the grand jury, which order the sheriff must forthwith execute, and in any event the court may in its discretion order a sufficient number of qualified jurors summoned to increase the number of grand jurors to eighteen, and the persons summoned by him are bound to appear presently, and, if necessary, to serve as grand jurors, under the same penalties as if they had been regularly drawn and summoned on the original list of grand jurors for the term; and of the persons so summoned, if a greater number appear than is necessary to complete the grand jury, the names must be written on separate slips of paper, which must be folded or rolled up, so that the name may not be visible, placed in a box, or some substitute therefor, and from them must be drawn, under the direction of the court, a sufficient number of names to complete the grand jury.

(Aikin's Digest, p. 296, § 6; Clay's Digest, p. 453, § § 16-18.) Court ordering sheriff to summon from qualified citizens twice the number to complete grand jury in supplying the places of jurors summoned but excused, held sufficient. Sanders v. State, 129 Ala. 69 (29 So. 841). Where only fourteen appear and are qualified and the court orders sheriff to summon six others and three appear and jury organized therefrom, held properly organized.-Hall v. State, 134 Ala. 90 (32 So. 750). Where there is a deficiency of two in the panel and the court ordered only two persons summoned and required that they be householders and freeholders, organization illegal.-Fowler v. State, 100 Ala. 96 (14 So. 860). It may be if the records are silent as to the organization of the grand jury, regularity will be presumed, but if it affirmatively appears that the organization was not in accordance with the statute, it is illegal.Finley v. State, 61 Ala. 201. Where thirteen appear and three others are added as the statute directs, a recital in the record that a foreman and thirteen others, held to be clerical misprision and cured by statute.-Tanner v. State, 92 Ala. 1 (9 So. 613). No summoning of additional persons unless panel reduced below fifteen.-Blevins v. State, 68 Ala. 92. Sheriff summoning less than required number, error which is cured by statute. To invalidate indictment on ground of organization of grand jury, the jury must be drawn in the presence of persons not authorized by law or there must be some erroneous judicial order as distinguished from a clerical or ministerial.-Billingslea v. State, 68 Ala. 486. Extraneous evidence to impeach the record not allowable.— Hall v. State, 134 Ala. 90 (32 So. 750). Plea to the organization of grand jury not available on motion in arrest of judgment.-Harrington v. State, 83 Ala. 9 (3 So. 425). As to formation of grand jury, see Welsh v. State, 96 Ala. 92 (11 So. 450). If fifteen appear, court has no power to add any more;

The Grand Jury; Its Formation, Oath, Powers, Duties and Business. and if more are added, their acts are invalid.-Cross's case, 63 Ala. 40; Berry's case, Ib. 126. Court may order twice as many to be summoned as needed to complete number to eighteen (now twenty-one), or fifteen, or any intermediate number.-Kilgore's case, 74 Ala. 1. See Yancy's case, 63 Ala. 141; Couch's case, Ib. 163; Scott's case, Ib. 59. Grand jury ordered to be completed "from the bystanders' is invalid.-Finley's case, 61 Ala. 201; Benson's case, 68 Ala. 513; Couch's case, 63 Ala. 163. The exact words "qualified citizens of the county" need not be used, if words used have same meaning.-Yancy's case, 63 Ala. 141; Stewart's case, 98 Ala. 70 (13 So. 319). If, after organization, grand jury reduced below fifteen by reason of sickness, court must make an order of record discharging those incapacitated, before supplying their places.— Peters's case, 98 Ala. 38 (13 So. 334); Scott's case, 63 Ala. 59. Order of discharge not necessary as to persons summoned but who do not appear.-Germolgez's case, 99 Ala. 216 (13 So. 517). Failure of minute entry to show formation and showing that grand jurors reduced to fourteen and that § 7283 was not complied with in making up the deficiency is within the curative power of § 7886 (5289).—Shirley v. State, 144 Ala. 35 (40 So. 269).

7284. (5024) (4339) (4755) (4082) (532) Oath of foreman. -The following oath must be administered to the foreman of the grand jury: "You, as foreman of the grand jury of county, do solemnly swear (or affirm, as the case may be) that you will diligently inquire, and true presentment make, of all indictable offenses given you in charge, as well as those brought to your knowledge, committed or triable within the county; the state's counsel, your fellows', and your own, you shall keep secret; you shall present no person from envy, hatred, or malice, nor leave any one unpresented from fear, affection, reward, or the hope thereof; but you shall present all things truly as they come to your knowledge, to the best of your understanding. So help you God."

(Clay's Digest, p. 453, § 19.) If the record shows that jury not duly sworn as required by statute, it is fatal. Objection to grand jury too late after plea to the merits.-Horton v. State, 47 Ala. 58. Sufficient recital in record that jury were legally sworn.-Lumpkin's case, 68 Ala. 56; Battle's case, 54 Ala. 93. Presumption that jury were properly sworn.-Battle's case, supra; Tanner's case, 92 Ala. 1 (9 So. 613); Herrington's case, 83 Ala. 9 (3 So. 429). Objection that foreman was not sworn cannot be raised for first time on appeal. -Roe's case, 82 Ala. 68 (3 So. 2). Objection must be raised by motion to quash or to strike from file.-Dotson's case, 88 Ala. 208 (7 So. 259).

7285. (5025) (4340) (4756) (4083) (533) Oath of grand jurors. After the oath above prescribed has been administered to the foreman, the following oath must be administered to the other grand jurors: "The same oath which your foreman has taken, on his part, you and each of you, on your respective parts, shall well and truly observe and keep. So help you God."

(Clay's Digest, p. 453, § 19.)

7286. Special charges to the grand jury.-The judges of the (r.c.c.) several courts in this state in which grand juries are organized and impaneled shall give in special charges to the grand jury

The Grand Jury; Its Formation, Oath, Powers, Duties and Business. relative to the criminal laws of this state against the following offenses: Laws regulating the use of automobiles, carrying concealed weapons, dealing in county claims by county officers, failure of tax assessor to administer oath to taxpayer, forming pools to regulate quantity or price of product, combination to control corporation with such intent, violations of election laws, laws relating to convicts and prisoners, adulterating and selling candies, gaming, selling liquors in violation of law, betting on any election, violating the game and fish law, anti-free pass law, or violating the law prohibiting corporations from contributing to campaign funds; and to instruct the grand juries that it is their duty to indict for such offenses if, in the opinion of the grand jury, the evidence justifies the indictment.

7287. (5026) (4341) (825, 4767) (906, 4094) (772, 544) Duty of grand jury as to county jail.—It is the duty of the grand jury to make a personal inspection of the condition of the county jail, in regard to its sufficiency for the safe keeping of prisoners, their accommodation and health, and to inquire into the manner in which the same has been kept since the last term of the court; and if it be found that such jail is not constructed in the manner prescribed by law, and so strongly and securely built as to prevent the escape of prisoners confined therein, and properly ventilated, they must, as often as may be necessary, cause the persons composing the court of county commissioners, at the time such jail was insufficient, to be indicted.

7288. (5027) (4342) (4767) (4094) (544) To examine condition of treasury, and official bonds; to inquire of indictable offenses, etc.-It is the duty of the grand jury to examine into the condition of the county treasury, and the bonds of all county officers, with regard to their correctness and sufficiency, and to report upon the same; to inquire into all indictable offenses committed or triable within the county, which, as they may be advised by the court, are not barred by the lapse of time, or some other cause; and to perform such other duties as are, or may be by law required of them.

Who determines amount of penalty of official bond.—Ex parte Plowman, 53 Ala. 440.

7289. (5028) (4343) To inquire into sheriff's accounts with state for feeding prisoners.-It is the duty of the sheriff to deliver the book in which he enters his accounts with the state for feeding prisoners to the foreman of the grand jury of the circuit or city court of such county, upon the first day of each term thereof; and it shall be the duty of the grand jury to