The defendant filed two pleas in abatement as follows:
"1. Comes the defendant in his own proper person and for plea in abatement says: The state ought not to further prosecute this indictment against him because the grand jury which found said indictment against the defendant were not drawn by the officers designated by law to draw the same, in that only one of the judges of the circuit court of Montgomery county drew or participated in the drawing or was present at the drawing from the jury box of the persons to supply said grand jury, and the other judge of said court was not sick or outside of the state of Alabama or for any other reason incapacitated or unable to be present and participate in the drawing of the names of such persons to supply said grand jury. The defendant says that at the time such names were drawn and at the time said grand jury was formed, there were two judges of the circuit court of Montgomery county and that by law both of said judges were required to draw from the jury box the names of the persons to *Page 491 supply said grand jury, but that, notwithstanding and in violation of said law, only one of said judges drew the names of the persons to supply said grand jury or participated in or was present at the drawing of said names from the jury box. And this the defendant is ready to verify and prays judgment that the prosecution upon this indictment be abated and that he be discharged.
"2. Comes the defendant in his own proper person and for plea in abatement says that the venire of petit jurors presented to him to strike from and all of said petit jurors were not drawn by the officers designated by law to draw the same, in that only one of the judges of the circuit court of Montgomery county drew or participated in drawing or was present at the drawing from the jury box of the persons to supply said petit jury and the other judge of said court was not sick or outside of the state of Alabama or for any other reason incapacitated or unable to be present and participate in the drawing of the names of such persons to supply said petit jury. The defendant says that at the time such names were drawn and at the time said petit jury was formed there were two judges of the circuit court of Montgomery county and that by law both of said judges were required to draw from the jury box the names of the persons to supply said petit jury, but that, notwithstanding and in violation of said law, only one of said judges drew the names of the persons to supply said petit jury or participated in or was present at the drawing of said names from the jury box. And this the defendant is ready to verify and prays judgment that the prosecution upon this indictment be abated and that he be discharged."
Section 23 of an act approved August 31, 1909 (Acts 1909, p. 315), provides that no objection to an indictment on any ground going to the formation of the grand jury which found the same can be taken to the indictment except by plea in abatement, and this plea is limited by the same section to the ground that the grand jurors who found were not drawn by the officer designated by law. The defendant has followed the remedy laid down in this statute. The same Act, § 15, p. 310, designates the officer or officers who shall draw the juries to serve for the term. In the county of Montgomery, which has two circuit judges, unless it be made to appear that one of them for some sufficient reason, be disqualified, the requirement is that the jurors be drawn by two judges. This same requirement is carried into section 18 as to additional jurors for subsequent weeks. It is manifest to us that the Legislature has designated the two circuit judges of Montgomery county as the officers who shall draw the juries. We think too, that this part of the law is mandatory, notwithstanding section 29 of the Act, p. 317, in which it is expressly declared to be the intent of the Legislature to make the provisions of the Act directory and not mandatory. Edgar v. State, 183 Ala. 36, 62 So. 800; Zininam v. State, 186 Ala. 9-12, 65 So. 56. As to the manner or method followed by the judges in carrying out the drawing, whether by their own hands or under their joint supervision and direction the act is directory. Scott v. State, 141 Ala. 39,37 So. 366; Hall v. State, 18 Ala. App. 407, 92 So. 527. To hold otherwise would take away from the drawing of juries that care and security so necessary in maintaining the unquestioned integrity of the jurors, who must pass on the lives and property of litigants.
If, for any valid reason, one of the judges of the circuit court, should be incapacitated to serve, then to all intents and purposes the number of judges would be reduced to one, and he alone could proceed under the statute to draw the juries and both of the pleas recognize this as being the law.
The evidence made the issue on the pleas one for the jury, and for the error in giving the general charge for the state on this issue the judgment must be reversed.
On the trial of the main issue on defendant's plea of not guilty, there was ample evidence to warrant the refusal of charges A, B, and E.
A reasonable supposition is not the same as a reasonable doubt, but if it is the court had fully charged on that phase of the testimony. Charge C was therefore properly refused and charge D, as it appears in the record, is elliptical.