The indictment upon which this appellant was tried and convicted reads as follows:
"Indictment "The State of Alabama, Jefferson County, Circuit Court of Tenth Judicial Circuit "July Term, 1933 "The Grand Jury of said county charge that, before the finding of this indictment, R. J. Barnett, whose Christian name is to the Grand Jury otherwise unknown, unlawfully, and with malice aforethought, killed Elizabeth Alverson by driving an automobile over upon or against her, against the peace and dignity of the State of Alabama."
As will be noted, the foregoing indictment charged the defendant with murder in the first degree, a capital felony.
The record shows that, over the protest, objection and exception of the defendant, the court forced him to go to trial without having complied with the mandatory provisions of Section 8644, Code 1923, which section reads as follows:
"Whenever any person or persons stand indicted for a capital felony, the court must, on the first day of the term, or as soon as practicable thereafter, make an order commanding the sheriff to summon not less than fifty nor more than one hundred persons, including those drawn on the regular juries for the week set for the trial of the case, and shall then in open court draw from the jury box the number of names required, with the regular jurors drawn for the week, set for the trial, to make the number named in the order, and shall cause an order to be issued to the sheriff to summon all persons therein named *Page 296 to appear in court on the day set for the trial of the defendant, and must cause a list of the names of all the jurors drawn for the week in which the trial is set, and those drawn as provided in this section, together with a copy of the indictment, to be forthwith served on the defendant, by the sheriff."
It affirmatively appears from the record that the trial court not only failed, but refused, to do the things required by said section, and entered no order as therein required, but forced the defendant to trial without a special venire, etc., and that the case was tried by a jury selected from the regular venire in attendance upon the court.
As stated, the indictment charged this defendant with a capital felony, hence the action of the court complained of in this connection was error to a reversal. There are innumerable decisions of the appellate courts of this State to this effect. The fact, if it be a fact, that the defendant was tried before upon this indictment, which trial resulted in his conviction of a lower offense comprehended and included therein, did not relieve the court of the necessity of entering the orders prescribed and designated in the Code section, supra, as no order or judgment of the court had been entered in this case showing such fact, and no plea of autre fois acquit had been interposed by the defendant, and the defendant had taken no steps to avail himself of this right, which the law conferred upon him. The oral statement of the court, shown by the record, in this connection will not suffice, and any such oral statement cannot be substituted for the mandatory requirements and provisions of the statute.
In the case of Burton v. State, 115 Ala. 1, 22 So. 585, Chief Justice Brickell for the Court said (page 587):
"This indictment is in the form prescribed by the Code, and avers all the elements and constituents of murder in the first degree, which may be punished capitally, — by death, or by imprisonment in the penitentiary for life. The defendant having pleaded not guilty, the primary duty of the court — a duty to be performed in the personal presence of the defendant — was the setting a day for the trial of the cause; and the day having been set, at least one entire day prior thereto, the drawing of special jurors, not less than 25 nor more than 50, as the court deemed necessary, to be summoned by the sheriff, under the order of the court, and added to the panel of petit jurors organized for the week; the two constituting the 'venire' as it is termed in the statute, from which the jury for the trial were to be selected. Cr. Code 1886, p. 134, note, § 10. A judgment of conviction on an indictment for an offense which may be punished capitally, cannot be supported, when drawn in question on error, unless it is shown affirmatively by the record that there was by the court performance of these duties. Spicer v. State, 69 Ala. 159; Sylvester v. State,71 Ala. 17; Posey v. State, 73 Ala. 490; Jordan v. State, 81 Ala. 20,1 So. 577; Washington v. State, 81 Ala. 35, 1 So. 18; Watkins v. State, 89 Ala. 82, 8 So. 134. The present record does not affirmatively show that a day was set for the trial of the cause, nor that there was the drawing of the special jurors for the trial, as the statute requires. It appears, rather, from the record, that there was not observance of the statute in either respect.
"If it were permissible to look to the record of this case when here at a former term (Burton v. State, 107 Ala. 108,18 So. 284), it would appear that there had been a trial on which there was a conviction of murder in the second degree, operating an acquittal of murder in the first degree, if the acquittal had been pleaded specially by the defendant, withdrawing the case from the operation of the statutes in regulation of trials for offenses subject to capital punishment. Jordan v. State, supra. But we cannot supplement the deficiency of records by referring to the records of the former terms of this court, though it may be a record in the particular case. And, if the record was looked to, the error of the court would not be cured. The acquittal of murder in the first degree, under the practice established in De Arman v. State, 77 Ala. 10, emphasized by the rule of practice promulgated by this court December 13, 1887 (82 Ala. viii), requires the acquittal to be pleaded specially, to avoid a conviction of that offense. The record does not disclose the filing of the plea, and, as the case is presented, there was not the observance of the mandatory requirements of the statute. The failure to observe them is an error necessitating a reversal of the judgment of conviction."
In Linnehan v. State, 116 Ala. 471, 22 So. 662, the court said (page 664):
"The record in this case does not show that the defendant had been once tried on *Page 297 this indictment, and convicted of murder in the second degree. The court did not set a day for the trial of the cause, and order the number of jurors prescribed by the statute for the trial, and have a list of them and copy of the indictment served on the defendant, in the manner prescribed for the trial of capital cases. Section 10 of the jury law (Cr. Code 1886, p. 134). Nor does it appear of record, that the defendant pleaded specially, that he had been acquitted on a former trial of murder in the first degree, in order to avoid a conviction of that offense, as required in such cases by rule 31, 82 Ala. viii. That rule makes it the duty of the court to require the defendant, in a case for it, 'to announce his election to file or waive his plea of former acquittal.' His election to file this plea or to waive it, should appear of record. If he file it, its truth may be confessed by the solicitor, in which case, no order for a special jury to try him shall be made. None of the prerequisites for a failure to set a day for the trial of this cause as for a capital offense, and the summoning of a special venire for the trial, appear in the transcript of the record; and as for anything there appearing, the defendant was tried for an offense which might have been punished capitally, without observing the mandatory requirements of the statute for such a trial. This was erroneous. Burton v. State [115 Ala. 1], 22 So. 585. The error was not cured, by what occurred afterwards in the course of the trial, appearing alone from the bill of exceptions, as to the statement of the solicitor, that he would elect to prosecute the defendant for murder in the second degree."
See, also, the case of Ex parte Williams, In re Williams v. State, 213 Ala. 121, 122, 104 So. 282.
Numerous other decisions could be cited, but the foregoing authorities are conclusive of the question, and we deem it unnecessary to prolong the opinion by further citations.
Other insistences of error are presented, but as this case must be reversed we refrain from further discussion, except to say that the evidence adduced upon the trial of this case is in its entirety circumstantial, and as a whole very vague and uncertain. While not passing upon the question of the sufficiency of the evidence to make a jury question we do assert, as stated in the case of Lay v. State, 26 Ala. App. 458,162 So. 319, "The deeply deplorable and tragic accident, its heart-rending results, of itself, cannot be made the basis or premise from which the acts of the accused should be determined or his guilt adjudged. That must be ascertained and determined solely from the evidence upon the trial as to the occurrence complained of."
Reversed and remanded.