As between the court’s oral charge set out in the transcript and the written charges given at the defendant’s request, there is no conflict; and the court did not err in charging the jury at the solicitor’s written request.— Home Protection of North Alabama v. Whidden, 103 Ala. 203.
In the judgment entry it is recited that “after selecting, empanñelling and swearing a jury according to law the indictment was read to the jury and the defendant for his plea thereto saith he is not guilty. Thereupon came a jury of good and lawful men, to-wit,” and here next after the word to-wit is set out the names of eleven individuals only, next following which is the further recital “who on their oaths do say we the jury find the defendant guilty,” etc. A majority of the court hold that these recitals show the verdict was rendered by a jury of twelve. This construction they adopt because a jury as known at common law, and in the law of this State, is constituted of twelve men, and’ the recital in so far as it asserts a return of verdict by a jury, being a proper one, controls the clerks’ unnecessary interpolation of the individual names, so that the latter cannot he regarded. *22As authority for their conclusion the majority relies on Foot v. Lawrence, 1 Stew. 483; Larillian v. Lane, 3 Eng. (Ark.), 372; 1 Thompson on Trials, § 5; 11 Ency. Pl. & Pr. 930.
The writer is of the opinion that the recitals do not show affirmatively, as the record of every conviction by jury for crime should show, that the verdict was rendered by a legally constituted jury. He notes that the decision in Foot v. Lawrence, supra, on which the other authorities cited seem to be based, and which was rendered by a divided court, was placed partly on the ground that the case was a civil one, wherein the parties who were presumed to be in court, allowed the verdict to stand unchallenged at the time of its return. The writer’s view is supported by the decision in Scott v. State, 70 Miss. 247, and is expressed by the lieadnote in that case which states “Where the record of a conviction in the circuit court recites that the accused was tried by a jury, whose names are given, and only eleven names appear therein, the conviction is void.”
Other than those above referred to there are no questions raised by the record. The judgment will be affirmed.
Stiarpb, J., dissenting.