ARTICLE 5.

SPECIAL PETIT JURIES IN CAPITAL CASES.

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.

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.

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 jurors to be brought into the court-room, and after having the same well shaken, the presiding judge shall then and there publicly 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.

A conviction of murder in the second degree operates an acquittal of the higher offense and, if pleaded, dispenses with the necessity of a special jury for a subsequent trial.-DeArman's case, 77 Ala. 10; Jackson's case, 78 Ala. 471. But if not so pleaded, special venire necessary.-Jordan's case, 81 Ala. 20. (See circuit-court rule 31, and citations thereto, Vol. I., p. 1200.) It is the province of the court to determine, within the limits, the number of jurors.-Blevins's case, 68 Ala. 92; Hubbard's case, 72 Ala. 164; Clark's case, 87 Ala. 71. When venire properly provided and served, defendant not entitled to a new venire because of continuance to a subsequent day or week of the term.-Thomas's case, 94 Ala. 74. When two or more capital cases are set for trial on same day, statute contemplates but one special venire for all.-Chamblee's case, 78 Ala. 466. Excusing jurors before day set for trial.-Fariss's case, 85 Ala. 1; Maxwell's case, 89 Ala. 150; Moseley's case, 107 Ala. 74. When juror engaged in considering another case.-Cole's case, 106 Ala. 76; Dorsey's case, 107 Ala. 157. When juror becomes ill before indictment read.-Yarbrough's case, 105 Ala. 43. When, after trial entered upon, juror becomes ill. Webb's case, 100 Ala. 47. When juror's wife becomes ill.-Hawes's case, 88 Ala. 37. Special venire at special or adjourned term.-Martin's case, 77 Ala. 1; Ward's case, 78 Ala. 441; Daughdrill's case, 113 Ala. 7.

5005. What constitutes venire for the trial of capital case. When the day set for the 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 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 and summoned for such subsequent week, shall constitute such venire.

No ground of objection that some of the special jurors are not summoned. Parsons's case, 81 Ala. 577; Webb's case, 100 Ala. 47. As to regular jurors, venire served on defendant should contain only the names of those drawn and summoned; or, when 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; Goley's case, 89 Ala. 82; Thomas's case, 94 Ala. 74; Ryan's case, 100 Ala. 105; Burton's case, 107 Ala. 108, 133 (head-note misleading). Motion to quash venire must be made before trial entered upon.-Thomas's case, 94 Ala. 74; Ryan's case, 100 Ala. 105. When venire quashed on motion of solicitor, made before service.--Wilkins's case, 112 Ala. 55.

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 to be collected and applied in the same manner as fines imposed on jurors in other cases.

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.

No objection 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 case, 47 Ala. 10; Hubbard's case, 72 Ala. 164; Jackson's case, 76 Ala. 26; Williams's case, 81 Ala. 1; McKee's case, 82 Ala. 32; Gibson's case, 89 Ala. 121; Jones's case, 104 Ala. 30. 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.

1887, p. 151,

5009 (4324) (4878) (4177) (625). Manner of drawing jury; tales-Feb-28, men. On the trial of a person charged with a capital offense, the $10. 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.

Discretionary with court to have names of jurors called from clerk's desk or outside. Hall's '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. 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. Order for talesmen need not appear of record; may be given orally.-Morrison's case, 84 Ala. 405.

ARTICLE 6.

DUTY OF COURT TO ASCERTAIN QUALIFICATIONS BEFORE SWEARING

JURORS.

5010 (4325) (4760) (4087) (537). Duty prescribed.-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.

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.

$9.

ARTICLE 7.

PETIT JURY AND TALESMEN; ARRANGING, SWEARING AND CHALLENGING.

5011 (4326) (4763) (4090) (540). Petit jurors arranged for 1887, p. 151, 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 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.

Evans's case, 109 Ala. 11.

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.

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.

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 oath must be administered to the talesmen, substituting the word "day" for "term."

The presumption is that the correct oath was administered, when it appears from the recital in the judgment-entry that the jury were "duly sworn," or sworn "according to law,” unless it also appears that a substantially different or defective oath was administered.-See Allen's case, 71 Ala. 6; Storey's case, Ib. 335, and the cases therein cited. It is the safer practice for the judgmententry to recite simply that the jury "was sworn according to law," not setting out the oath.-Roberts's case, 68 Ala. 515; Allen's case, 71 Ala. 6; Storey's case, Ib. 335. See also Cary's case, 76 Ala. 78; Peterson's case, 74 Ala. 34; Johnson's case, Ib. 537. (But the succeeding section relieves it of error, unless record shows objection was made.) Where special jury is impaneled, better practice to swear juror separately, as he is selected.-Allen's case, 60 Ala. 19.

5014 (4329). When defective oath no ground for reversal of criminal case by supreme court.-No criminal cause taken by appeal to the supreme court shall be reversed because of any defect in the administration of the oath to any grand or petit jury, unless the record in the cause discloses the fact that some objection was taken in the court below, during the progress of the trial, based on such defect; but this rule shall not apply to cases where it appears affirmatively from the record that the appellant did not have the benefit of counsel on his trial in the court from which the appeal was taken.

1887, p. 151.

As amend

1889, p. 77,

5015 (4330) (4879, 4880) (4178, 4179) (626, 627). Peremptory Feb. 27, challenges; number allowed state and defendant.-The state is $13. entitled to fourteen peremptory challenges on the trial of a capital ed Feb. 28, offense, to four, on the trial of any felony not capital, to three, on $2. the trial of any misdemeanor, and to four, on the trial of bastardy proceedings; the defendant is entitled to twenty-one peremptory challenges, when on trial for a capital offense, to eight, when on trial for any felony not capital, to five, when on trial for a misde

Feb. 28.

1889, p. 77,

$2.

meanor, and to six, when on trial in bastardy proceedings. When two or more defendants are tried jointly for a capital offense, each defendant is entitled to eleven peremptory challenges; on the trial of two or more defendants for any felony not capital, each defendant is entitled to four peremptory challenges, and on the trial of two or more defendants for a misdemeanor, each defendant is entitled to three peremptory challenges. This section does not repeal any common-law right of challenge.

State must pass on jurors before defense.-Spigener's case, 62 Ala. 383. After state challenges, court may require defendant to pass on remaining jurors before filling up jury.-Wilson's case, 31 Ala. 371. Juror, if inadvertently taken, may be peremptorily challenged by defendant at any time before he is sworn. Murray's case, 48 Ala. 675. Unless waived, defendant's right of challenge not lost until the oath is tendered to juror.-Ib.; Drake's case, 51 Ala. 30; Spigener's case, 62 Ala. 383. But too late after juror is sworn.-Rash's case, 61 Ala. 89; Henry's case, 77 Ala. 75. Or after solicitor and defendant have expressed satisfaction with jury as organized.-Sparks's case, 59 Ala. 82; Spigener's case, 62 Ala. 383. Law increasing number of challenges for state and defense; trial had under new law.-Lore's case, 4 Ala. 173. Discretionary with court to allow state to challenge after first announcing satisfied.-Daniel's case, 88 Ala. 220. Law in force at time of trial regulates number of challenges, and not that at time of commission of offense.-South's case, 86 Ala. 617.

5016 (4331) (4881, 4884) (4180, 4183) (628, 631). Challenges for cause. It is a good ground for challenge by either party

1. That the person has not been a resident householder or freeholder of the county for the last preceding year.

2. That he is not a citizen of Alabama.

3. That he has been indicted within the last twelve months for an offense of the same character as that with which the defendant is charged.

4. That he is connected by consanguinity within the ninth degree, or by affinity within the fifth degree (computing according to the rules of the civil law), either with the defendant, or with the prosecutor, or the person alleged to be injured.

5. That he has been convicted of a felony.

6. That he has an interest in the conviction or acquittal of the defendant, or has made any promise, or given any assurance, that he will convict or acquit the defendant.

7. That he has a fixed opinion as to the guilt or innocence of the defendant, which would, bias his verdict.

8. That he is under twenty-one, or over seventy years of age.

9. That he is of unsound mind.

10. That he is a witness for the other party.

11. In any civil case, that the juror is plaintiff or defendant in a case which stands for trial during the week he is challenged; or is related by consanguinity within the ninth degree, or by affinity within the fifth degree (computed according to the rules of the civil law), to any attorney in the cause to be tried, or is a partner in business with any party to such cause.

This statute not repealed by section 4982.-Iverson's case, 52 Ala. 170; Ezell's case, 102 Ala. 113, dissenting opinion, adopted in Parker's case, 102 Ála. 128. Non-residence in county cause for challenge.-Hall's case, 51 Ala. 9; Gray's case, 55 Ala. 86; Hall's case, 40 Ala. 698. Term "householder" implies more