The conviction in this case must be reversed upon the authority of Joe Johnson v. The State, at the present term. The record recites the oath administered to the petit jury who tried this case in the court below, in these words: “ Thereupon, came a jury of lawfully qualified men, to-wit: B. A. Reynolds, and eleven others, who being impanneled and sworn well and truly to try the issue joined, and having heard the evidence and the charge of the court, rendered the following verdict.” This is not the oath required by the statute, nor is it equivalent to the recital that the jury were well and truly sworn to try the issue joined according to law. Nor does it appear that the finding of the jury was upon “them oath.” The rule in criminal prosecutions is, that the record must show affirmatively *61that the court has proceeded according to law. This court can not know that a party accused has been tried “by due process of law” unless this is shown by the record. It is to the record alone that the court must look. If this is defective, there is no authority to amend it by presumptions. — Const. Ala. art. 1, § 8; Rev. Code, § 4314. Here the oath set out in the record is not that required by the statute. — Rev. Code, § 4092. Nor is it averred or stated in the record that the jury were sworn according to law. Then there is no grounds upon which the court can base a presumption to help out the record. Without this, the presumption would be a mere guess. And beside this, it does not appear that the jury delivered their verdict upon “their oath.” This is usual in all the forms. — Black. Com. App. p. 111.
I can not consent to authorize such irregularities. There will be no end to them, if this court sanctions the amendment of the record on presumptions, which in such a case are rather mere guesses.
The objection to the grand jury that found the indictment comes too late, after the accused has pleaded a plea to the merits in the court below. — Rev. Code, § 4187; 30 Ala. 511; 33 Ala. 366. This is the case here.
The other objections to the proceedings in the court below are not such as will likely occur upon a new trial. They are therefore not noticed in this opinion.
The judgment of the court below is reversed, and the cause is remanded for a new trial; and the defendant (said B. Reed Horton) will be kept in custody until discharged by due course of law.