Fleming v. State

This case was reversed and remanded by opinion heretofore rendered by Foster, J., who has since resigned from this court, on the sole ground that the defendant was forced to select her jury from a venire containing the names of nine jurors a list of whom had not been served upon her, as provided by law, in capital cases. Acts 1909, p. 305, § 32, as amended by Acts 1919, p. 1039.

The state, through its Attorney General, has filed an application for rehearing, and argues that, even though this action of the trial court be error, it cannot here avail the defendant, for the reason that no objection to the addition of the names referred to to the venire from which she was required to select her jury was made in the court below by the defendant. The honorable Attorney General is, we think, wrong in this contention, as it appears the bill of exceptions in the case has this statement:

"Thereupon (after the drawing of two other jurors on the day the cause was set for trial, and at a time when the total number present and qualified had not been reduced below 30 as provided by the statute) the defendant refiled the same grounds, separately and severally, in his objection to going to trial since the two extra jurymen were drawn, and on the additional ground that the venire as now completed by the adding of the two additional members of the jury had not been served upon the defendant."

Proper exception was reserved to the action of the court in overruling the said objection and forcing the defendant into immediate trial. We think the action of the trial court in the particular stated clearly reversible error.

The cases cited by the state are clearly distinguishable, and in no way militate against the present holding. In each of them, which are pertinent to the question here, the objection urged was that the names of a greater number of jurors than called for by the order of the court had been served upon the defendant. Of course this could not harm the defendant.

But here, as pointed out in the original opinion, the defendant was forced, over timely objection, to select her jury from a venire containing the names of 9 jurors, whose names had not been served upon defendant as required by law. This was error to reverse the case, under the authority of the case of Cain v. State, 16 Ala. App. 303, 77 So. 453, and Malone v. State, 16 Ala. App. 646,81 So. 138, and Acts 1919, p. 1039.

Opinion extended; application overruled