On Petition for Rehearing.
In his brief in support of the State’s application for rehearing the Attorney General requests that we extend our opinion to show:
1. That a certificate of reversal was included in the record.
2. That the lower court in its oral charge instructed the jury that the appellant was on trial for murder in the second degree only, and the court did not define murder in the first degree, but gave instructions only as to murder in the second degree, and manslaughter, and counsel expressed satisfaction with the charge.
3. The judgment entry recites:
“ * * * the defendant having been arraigned heretofore under the indictment and placed on trial for murder in the 1st degree, and having been convicted of murder in the 2nd degree, and the cause having been reversed by the Appellate Court, the said defendant is now placed on trial for the of*542fense of murder in the 2nd degree as charged in and included- in said indictment and appears before the court, attended by his counsel, for his plea thereto, pleads and says that he is not guilty. Issues being joined a trial is had.”
4. That the defendant pleaded not guilty to murder in the second degree.
We are glad to comply with the réquest of the Attorney General as above outlined, but do not think that these additional facts can be deemed to materially affect the conclusion reached.
This for the reason that this defendant by the rulings of the trial court at the outset of the trial was deprived of a substantial right given to him by the Constitution, the Statutes, and the Rules of Court of this State.
As stated in Spooney v. State, 217 Ala, 219, 115 So. 308, 310:
“The right of trial by jury is fundamental in our jurisprudence, guaranteed by the Constitution (Const.1901, §§ 6, 11), and if this guaranty means anything at all, it is that the defendant is entitled to trial by a jury selected and impaneled as prescribed by the law of the land.”
Any other principle of law that might seem contradictory cannot supercede, but must give way to fundamental constitutional rights.
Section 6 of our Constitution, Sections 63 and 69 of Title 30, Code of Alabama 1940, and Circuit Court Rule 30, clearly spell out the rights to' which this appellant was entitled in the matter of the arraignment, i setting of his case for trial, serving him -with a copy of the venire, etc.
The appellant made timely obj ections' to being put on trial because of the omission to comply'with the requirements above mentioned.- --These--objections---were overruled. Error infected the entire proceedings because of these rulings, and the subsequent statements by the Solicitor, and statements and instructions to the jury by the trial court, cannot be deemed to have vitiated and rendered harmless the prior rulings by which the appellant was deprived of his constitutional rights.
Application overruled.