The appellant was indicted for murder in the first degree and convicted of manslaughter in the first degree.
The minutes of the court recite that —
"In open court, this the 21st day of April, 1923, it is hereby commanded that the sheriff summon 80 persons this day drawn from the jury box to serve as jurors for the week beginning Monday, May 7, 1923, and the Judge in open court this day draws from the jury box 80 names which shall constitute the special venire of 80 for the trial of capital cases set for week beginning Monday, May 7, 1923. The court has not drawn and shall not draw any regular venire for the week beginning Monday, May 7, 1923."
It was also ordered that a copy of the venire first drawn and a copy of the indictment be served forthwith by the sheriff upon each defendant, whose case was set for trial Monday, May 7, 1923, and that defendant's case be set for trial Monday, May 7, 1923.
It was not error for the presiding judge in open court on April 21, 1923, to draw a special venire for the trial of capital cases set for trial on May 7, 1923. It was not necessary to draw the venire at an earlier day during the term of the court.
Section 29, Acts 1909, p. 305, reads as follows:
"The jurors selected, drawn, summoned and empaneled under the provisions of this act, whether at an earlier or later day than this act requires, must and shall in all respects be deemed legal, and to possess in full in every respect, power to perform all of the duties belonging to grand and petit jurors, and no objection can be taken to any venire of jurors except for fraud in drawing or summoning the jurors."
Under the express terms of the act, supra, the provision of section 15 of the act for the drawing of a jury 20 days before the beginning of the term is not mandatory, and the time at which they are drawn does not affect the legality of the panel. Caldwell v. State, 203 Ala. 412, 84 So. 272; Cole v. State,19 Ala. App. 360, 97 So. 891; Riley v. State, 209 Ala. 505,96 So. 599; Umble v. State, 207 Ala. 508, 93 So. 531.
A special venire for the trial of capital cases should be composed of two elements: (1) The regular juries drawn for the week the capital case is set; and (2) the special jurors drawn to afford the number for the special venire fixed by the order of the court. The trial court was in error in declining to draw a regular venire for the week beginning May 7, 1923, thus omitting one of the elements the law contemplates shall constitute a special venire in a capital case. Under the authority of Umble v. State, 207 Ala. 508, 93 So. 531, Whittle v. State, 205 Ala. 639,89 So. 43, and Riley v. State, 209 Ala. 505, 96 So. 599, no prejudice to the defendant resulted from the court's declination to draw regular juries for the week defendant was tried.
In view of the settled construction of Jury Law 1909, §§ 18 and 32, which were amended and re-enacted with the exception of certain provisions by Acts 1919, p. 1039, an objection that 37 of the 80 jurors had been excused or were out on another case and that defendant had a venire of only 43 from which to select the jury is not ground for motion to quash the venire, objection to which can be taken only on the ground of fraud in drawing or summoning the jurors, as provided by section 29 of the Jury Law of 1909. Cole v. State, 19 Ala. App. 360, 97 So. 891. Section 32 of Act 1919, p. 1039, fixes the minimum of qualified jurors at 30.
Virgil Norris and J.C. Brand qualified as jurors on Monday, May 7th, and were excused by the court from jury service on May 8th on account of sickness. The trial court did not err in overruling defendant's objection to being put to trial on the ground that the two jurors, Norris and Brand, were excused.
That the venire was fixed at 80 names and 85 were drawn was not error, as the number fixed and the number drawn were within the minimum and the maximum fixed by law. Tyler v. State, 207 Ala. 129,92 So. 478.
Section 32, Act 1919, p. 1039, among other things, provides, "if in any capital case the number of competent jurors shall be less than 30," the court must draw additional jurors.
The number of jurors remaining on the list of names served on defendant, after the court had excused those who offered legal excuses, was 43, and, the number not having been reduced below 30, the trial court was without authority to draw from the jury *Page 483 box 7 additional names (not on the list served on defendant) and place them on a list of jurors from which defendant was required to strike in selecting a jury of 12 to try her case. After drawing 7 additional jurors and excusing two of the original 43, it was error for the court to draw from the jury box the names of two additional jurors (not on the list served on the defendant) and place them on a list of jurors from which the defendant was required to strike in selecting the jury to try her case; the number of qualified jurors on the list served on the defendant not having been reduced below 30. It cannot be said that this action of the court was harmless error.
No doubt the very eminent and just trial judge in the drawing of the additional jurors was undertaking to be absolutely fair and just to the defendant in giving her a larger number of jurors to strike from. But the law fixes limitations which trial judges cannot disregard, even though their purpose be magnanimous. If the law is not adhered to, each trial judge in the state would become a jury law unto himself, and for the protection of the citizens of the state we must have uniform jury laws.
For the errors indicated the judgment of the circuit court is reversed and the cause remanded.
Reversed and remanded.
On Rehearing.