So far as the questions presented by appellant’s motion to quash the indictment, and by his plea in abatement, with the exception of the first ground, they are substantially the same as those presented in the case of Kitt v. The State, 23 So. Rep. 485, and according to the principles declared in that case we hold, that the ruling of the court was free from error. Issue was joined upon the first ground, which averred that “the jurors were not drawn in the presence of the officers designated by law.” The uncontradicted evidence was to the contrary of the fact averred in the plea, and the court properly charged the jury affirmatively for the State as to this ground.
The question raised by the motion to quash the venire, because there were persons on the venire who had served as jurors within twelve months preceding, has been disposed of adversely to the defendant in the following cases: Arp v. State, 97 Ala. 5 and cases cited; Jones v. State, 104 Ala. 32; Childs v. State, 97 Ala. 52; Cross v. State, 63 Ala. 40.
It has long been settled, that the provision of the law which requires the court to set a day for the trial of the defendant who may be punished capitally is both mandatory and judicial, and that the record on appeal must show affirmatively that the provision has been complied with. Spicer’s case, 69 Ala. 159; Washington’s case, 81 Ala. 36; Burton’s case, 115 Ala. 1; Sylvester’s case, 71 Ala. 17. The record is entirely silent as to these preliminary orders, indispensable to a legal trial, and necessitates a reversal of the case.
Beversed and remanded.