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than mere occupant of room or house.-Aaron's case, 37 Ala. 106. One who has merely "rented lands for last twelve months," is not a "freeholder" or "householder."-Iverson's case, 52 Ala. 170. Yearly tenant not a freeholder. Aaron's case, 37 Ala. 106. "Householders" and "freeholders" include man living with his family in wife's house belonging to separate estate.-Sylvester's case, 72 Ala. 201. An unmarried man who rents and occupies a room as a sleeping apartment, taking his meals elsewhere, is not a householder.-Katzenburg v. Lehman, 80 Ala. 512. "Assault with intent to murder" is offense of "same character" as murder under this statute.-Crockett's case, 38 Ala. 387. That juror is on appearance bond of defendant is cause for challenge by state.-Brazelton's case, 66 Ala. 96. As to relations of lawyer and client, master and servant, etc., as causes of challenge, see Ib. 98. That juror is first cousin to prosecuting attorney, is not cause for challenge.-Washington's case, 58 Ala. 355. Nor first cousin of stepfather of deceased.-Kirby's case, 89 Ala. 63. An opinion founded merely on rumor, or formed on the hypothesis of the truth of facts which he has heard, and without the hearing of other facts which may contradict them or lessen their weight, is not cause for challenge.-Bales's case, 63 Ala. 30. But see Jackson's case, 77 Ala. 18. Nor is a juror subject to challenge merely because he has formed an opinion as to the guilt or innocence of the accused, which may be changed by the evidence.-Beason's case, 72 Ala. 191; Carson's case, 50 Ala. 134; Williams's case, 3 Stew. 454; Morea's case, 2 Ala. 275; Hall's case, 51 Ala. 9; Long's case, 86 Ala. 36; Hammil's case, 90 Ala. 577. When held good cause of challenge.-Crockett's case, 38 Ala. 387; Ned's case, 7 Port. 187; Quesenberry's case, 3 Stew. & Port. 308; Henry's case, 77 Ala. 75; King's case, 89 Ala. 146. Age does not disqualify, and not cause for challenge, unless juror is under twenty-one, or over seventy years of age; but may be claimed as exemption.-Williams's case, 67 Ala. 183; Spigener's case, 62 Ala. 383. But if over seventy, juror disqualified.-Arp's case, 97 Ala. 5. Challenges for cause not confined to causes enumerated in Code.-Smith's case, 55 Ala. 1 (overruling, on this point, Leyman's case, 45 Ala. 72; Boggs's case, Ib. 30); Carr's case, 104 Ala. 4; Carr's case, Ib. 43; Wickard's case, 109 Ala. 45. Held cause for challenge, that juror served on trial of another person charged with selling liquor to same intemperate person.-Smith's case, 55 Ala. 1. Also that juror served on previous trial of same case, or has been summoned as a witness for state.-Commander's case, 60 Ala. 1; Atkin's case, Ib. 45; Baldwin's case, 111 Ala. 11. Also, that juror sat on trial of another person, convicted at same term, of like offense, at same time and place. Wickard's case, 109 Ala. 45. Also, that juror is witness and interested in a similar prosecution against defendant.-Carr's case, 104 Ala. 4; Carr's case, Ib. 43. Also, that juror was on the grand jury which found the indictment.-Birdsong's case, 47 Ala. 68; Finch's case, 81 Ala. 41; Williams's case, 109 Ala. 64. But challenge comes too late, if prisoner has accepted him.-Battle's case, 54 Ala. 93. Also, in capital case, where juror on regular jury for the week had previously convicted prisoner's co-defendant, as to whom there had been a severance.-Wesley's case, 61 Ala. 282. Juror is not incompetent because he is a witness in the case.-Bell's case, 44 Ala. 393. (Although, under the statute, he may be challenged for cause.) Challenge for cause may be permitted after solicitor and defendant expressed satisfaction with jury, if cause existed and was not sooner discovered.-Spark's case, 59 Ala. 82; Roberts's case, 68 Ala. 515. But too late after juror sworn.-Ib. See Drake's case, 51 Ala. 30; Stalls's case, 28 Ala. 25; Williams's case, 3 Stew. 454. To knowingly accept disqualified juror, estops right to complain.-Brown's case, 52 Ala. 345. Presumption that party knew, unless contrary appears.-Ib. Also presumed that juror was qualified, if record is silent on the subject.-Rash's case, 61 Ala. 89. Error in disallowing challenge for cause; when not cured by allowing extra number of peremptory challenges.-Iverson's case, 52 Ala. 170. Not error for court, after examining juror, to disallow examination by prisoner's counsel for purpose of ascertaining cause of challenge.-Bales's case, 63 Ala. 30; Hawes's case, 88 Ala. 37. Not error for court to refuse to exclude disqualified juror, unless challenged for cause.-Jackson's case, 94 Ala. 85. Right of challenge for existing cause lost if not claimed before entering upon ceremony of administering oath to jury.-Smith's case, 55 Ala. 1; Henry's case, 77 Ala. 75.

5017 (4332) (4882, 4884) (4181, 4183) (629, 631). Same; how proved. Of the causes of challenge specified in the last preceding section, the first four may be proved by the oath of the person summoned, or by other evidence; the fifth and sixth, by other testimony only; the seventh, by the oath of the person alone; and the others as the court may direct.

Bridges's case, 110 Ala. 15.

5018 (4333) (4883) (4182) (630). Additional ground of challenge in certain cases in favor of state.-On the trial for any offense which may be punished capitally, or by imprisonment in the penitentiary, it is a good cause of challenge by the state that the person has a fixed opinion against capital or penitentiary punishments, or thinks that a conviction should not be had on circumstantial evidence; which cause of challenge may be proved by the oath of the person, or by other evidence.

State may challenge for fixed opinion against capital or penitentiary punishment, or waive or forbear to exercise such right.-Murphy's case, 37 Ala. 142; Lyman's case, 45 Ala. 78. But it is not ground for challenge by defense, nor can defendant complain of state for waiving such cause of challenge. Wesley's case, 61 Ala. 282; Harrison's case, 79 Ala. 29. It is a good cause of challenge by the state, in felonies or misdemeanors, that a juror will not convict on circumstantial evidence alone.-Smith's case, 55 Ala. 1. And 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; Griffin's case, 90 Ala. 596. 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.

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.

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.

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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.

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. Error to excuse juror without cause, against defendant's objection.-Simon's case, 108 Ala. 27. Juror who cannot understand the English language may be excused. Long's case, 86 Ala. 36. Power of court to excuse jurors for causes incapacitating them from continued service.-Hawes's case, 88 Ala. 37; Webb's case, 100 Ala. 47; Yarbrough's case, 105 Ala. 43. For other causes.-Fariss's case, 85 Ala. 1; Riley's case, 88 Ala. 193; Maxwell's case, 89 Ala. 150; Cole's case, 106 Ala. 76; Dorsey's case, 107 Ala. 157. Policeman on active duty.-Pierson's case, 99 Ala. 148.

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.

5022 (4337) (4753) (4080) (530). Grand jury; number; foreman.-At least fifteen persons must be sworn on the grand jury, one

or

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 charged, the court may appoint another in his place.

Challenge of grand jurors by the party about to be indicted, not allowed. Hughes's case, I 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.

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 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.

If fifteen appear, court has no power to add any more; 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; Čouch'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. 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; 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.

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."

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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; Herrington's case, 83 Ala. 9. Objection that foreman was not sworn cannot be raised for first time on appeal.-Roe's case, 82 Ala. 68. Objection must be raised by motion to quash or to strike from file.-Dotson's case, 88 Ala. 208.

5025 (4340) (4756) (4083) (533). Oath of other 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."

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.

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 lapse of time, or some other cause; and to perform such other duties as are, or may be by law required of them.

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 inquire into the correctness of such accounts as may have been so made out since the preceding term.

5029. To inquire whether county court has been held as required by law. It is the duty of the grand jury to inquire whether the county court has been held as required by law, and if they find that it has not been so held, to report that fact to the court.

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5030 (4344) (5022) (3539) (3068). To examine fee-book of probate judge. It is the duty of the solicitor and grand jury, at every term of the circuit or city court, to examine the fee-book of the probate judge, and ascertain if illegal fees have been corruptly received.

5031 (4345). To examine books and papers of county superintendent of education.-It is the duty of the solicitor and the grand

jury, at every term of the circuit or city court, to examine the books and papers of the county superintendent of education.

5032 (4346) (4768) (4095) (545). Entitled to free access to jail and county offices.-They are entitled to free access, at all proper hours, to the county jail, and to the office of the county treasury, and to the examination, without charge, of all records and other papers in any of the county offices connected in any way with their duties.

5033 (4347) (4774) (4101) (551). Witnesses and evidence; issue of subpoenas; proceedings against defaulters.-The solicitor, or the clerk of the court, on the application of the grand jury, must issue subpoenas for any witnesses whom they may require to give evidence before them; and if witnesses so summoned fail to attend, the subpœnas must be returned to court, with the default thereon indorsed, signed by the foreman; and the same proceedings may thereupon be had against them as against other defaulting witnesses, the indorsement of the foreman being presumptive evidence of the default.

Sufficiency of scire facias against such witness; what will not support final judgment.-Durden's case, 32 Ala. 579. Contempt by refractory witness. Newsum's case, 78 Ala. 408.

5034 (4348) (4215) (3627) (85). Solicitor authorized to summon witnesses.-Solicitors have authority, and it is their duty, in term time or in vacation, to issue a subpoena for any person whom they may desire to appear before the grand jury, to give evidence of any violation of the law.

5035 (4349) (4773) (4100) (550). Witnesses; by whom sworn; certificates of attendance; list and book kept and returned. Witnesses before the grand jury may be sworn by the solicitor or foreman, and a list of all witnesses summoned, and in attendance. before such jury during each term, must be kept by the foreman; and he shall give to each of such witnesses a certificate, stating the number of the case in which such witness attended, the number of days of his actual attendance, the number of miles traveled by him and the amount due him; and each of such items the foreman shall enter in a book kept for that purpose; and such book and list, certified by the foreman to be correct, must be by him returned into court, and by the clerk filed and kept as a part of the records of such court.*

Newsum's case, 78 Ala. 408; Banks's case, 78 Ala. 14; Joyner's case, 78 Ala. 448; Scruggs's case, 111 Ala. 6.

5036 (4350) (4776) (4103) (553). Legal evidence only received before grand jury.-In the investigation of a charge for any indict

*An act approved December 7, 1896 (Pamph. Acts, p. 81), entitled "An act to authorize the foreman of the grand jury to issue certificates to witnesses examined before the grand jury," is as follows:

"SECTION 1. Be it enacted by the general assembly of Alabama, That after the passage of this act, it shall be the duty of the foreman of the grand jury to issue certificates to all witnesses examined before the grand jury and such certificates may become claims against the fine and forfeiture fund in the same manner as witness certificates issued to state witnesses by the clerk of the court."

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