Notwithstanding the argument in support of the action of the city court, in relation to the constitution of the grand jury, we are constrained by our former decisions, and particularly by the case of Peters v. State, 98 Ala. 38, referring to many of the prior decisions, to declare that the city court erred in overruling the motion of the appellant in arrest of judgment. It is to be regretted that errors of this kind are not of in*52frequent occurrence in the primary courts. "We may be permitted to say, the occurrence of them could be avoided, if there was an observance of the statutes and the repeated decisions of this court in exposition of them, and care taken that the record clearly and distincly discloses the observance. The court in the first instance, organized a grand jury of sixteen persons. According to repeated decisions of this court, this was a judicial determination that the grand jury should consist of that number for that term ; a determination the court was without power to vary. Without discharging two of the jurors, who were reported absent; without inquiry into the character of the absence, whether it would probably endure, or was expected to endure, for the term ; or whether it was merely accidental, as such absence often occurs, the court, without excusing or discharging these jurors, ordered the summoning of two talesmen, one of whom was selected, sworn, and became a member of the grand jury. One of the absent jurors, subsequently appeared, was recognized, and participated in the deliberations of the jury. We are not assured what was the purpose of the court — whether it was to reduce the number of the grand jury to fifteen, if the absent jurors did not subsequently appear, or if they did appear, to increase it to seventeen. Whatever may have been the purpose, an error was committed by the court, patent on the record, fatal to the judgment of conviction. The motion in arrest of judgment should have been sustained. This error will compel the quashing the indictment in the city court.
The judgment is reversed and the cause remanded ; the prisoner -will remain in custody, until discharged by due course of law.
Reversed and remanded..