The appeal is on the record without bill of exceptions. The only question raised is that one J.C. McGarr, whose name appears as one of the grand jurors impaneled on the grand jury that returned the indictment, does not appear on the list of jurors summoned or those who appeared in obedience to a summons to serve as jurors for that week of the term of court at which the indictment was found.
An act of the Legislature of Alabama (Acts 1915, p. 708), amending section 6256 of the Code, reads as follows:
"What Transcript Must Not Contain. — Such transcript must not contain mere orders of continuance, nor the organization of the grand jury which found the indictment, nor the venire for any grand or petit jury, nor the organization of regular juries for the week or term at which the case was tried nor the order of the court for a special venire or fixing a day for the trial of the defendant unless some question thereon was raised before the trial court; but, in the absence of any such question, such proceedings are, upon appeal, presumed to have been regular and legal."
No question was raised before the trial court on the organization of the grand jury which found the indictment, and by virtue of the act of 1915, supra, such proceedings are presumed on appeal to have been regular. The identical questions involved in the instant case are fully discussed and decided in the opinion of Bricken, P.J., in the case of Sterling Fannin v. State (Ala.App.) ante, p. 122, 101 So. 95.
The cases cited by the learned counsel for appellant were decided before the passage of the act of 1915, supra, and do not now apply.
There is no error in the record. The judgment of the circuit court is affirmed.
Affirmed. *Page 268
On Rehearing. There was no question raised in the court below in any manner as to the venire, and it was unnecessary that the order appear in the transcript on appeal. Acts 1915, p. 708. The applicable portion of Supreme Court rule 27, as amended (198 Ala. xv; 77 So. vii), is as follows:
"And in criminal cases the transcript shall not contain the organization of the grand jury which found the indictment, nor the venire, special (in a capital case) or general, for any grand or petit jury, nor the organization of the regular juries for the week or term at which the case was tried, nor the order of the court for service of the copy of the venire or indictment upon the defendant or the sheriff's return to said order, unless some question thereon was raised before the trial court and there decided."
The appellant may not raise the question for the first time on appeal. Anderson v. State, 204 Ala. 476, 85 So. 789.
The application for rehearing is overruled.