#### GARDNER *vs.*THE STATE.

[INDICTMENT EOS. MUEDÉB. ]

2. *Oath administered jmy in felony trial; what rental in record as to, sufficient*In capital and other felonies, when the oath administered to the jury is set out in the minute entry of the trial, apd an essential part of the oath prescribed by section 4092 of the Bevised Code is omitted, as, if it omits to state that the jury was sworn “a true verdict to render according to the evidence,” the conviction will be erroneous. . If, however, the entry does not preténd to set out the oath1, but states that the jury “was duly sworn according to law,” or “was duly sworn,” in either case, it will be presumed the jury -was properly sworn, according to the form prescribed in said section.

Appeal from the Circuit Court of Perry,

Tried before Hon. M. J. Saeeold.

The appellant, who was indicted for the murder of Toney Tinsal, was found guilty of manslaughter in the first degree, and sentenced to eight years’ imprisonment in the penitentiary. No bill of exceptions was reserved, and the appeal is taken on the record. The defendant was arraigned on the 18th of March and the -trial set for the 21st day of March, and actually took place on the 22d day of that month. On the 18th of March an order was entered upon the minutes, that the defendant be served with a copy of the indictment and list of jurors, &e., one entire day before the day set for the trial. The sheriff’s return shows *264that, on the 19th of March, he executed the order, by delivering to the defendant a copy of the indictment and list of jurors summoned for his trial. The record does not show that defendant was in actual confinement at the time of and before the trial. That portion of the minute entry in relation to the swearing of the jury, after showing the names of the persons drawn and accepted as jurors, to the number of twelve, is as follows: “who, being duly impanneled and sworn, well and truly to try the issue and true deliverance make, between the State of Alabama and Bill Gardner, the prisoner at the bar, and a true verdict render according to the evidence, upon their oaths do say,” &c.

Powhattan Lockett, for appellant.

John W. A. Saneord, Attorney-General, *contra.*

PECK, C. J.

In the case of *Lockett v. The State,*at the last term, it is held, that in a criminal case, if the record shows that the jury was “ duly sworn according to law,” that was enough.

At the same term, in the case of *Smith v. The State,*it is said, “In a criminal case, the omission of an essential portion of the oath required to be administered to the jury, apparent from the record, is a reversable error.”

So, again, at the same term, in the case of *McNeil v. The State,*it is decided, that an appeal in a criminal case, where the judgment entry recites 'that the jury was sworn “to well and truly try the issue joined,” without more, it was apparent that the oath administered to the jury was not attempted to be set out, and this court would presume the proper oath was administered.

And so, again, at the same court, in the case of *Joe Johnson v. The State,*it is held, that.in capital cases and other felonies, there are some matters that must affirmatively appear in the record, otherwise, the judgment would be reversed ; and among these was the oath administered to the jury; that if it appeared from the record that an essential part of the oath, required by section 4092 of the Revised *265Code to be administered to tbe jury, was omitted, tbe judgment would be erroneous.

In tbis last case, tbe record states tbat tbe jury “were duly sworn to well and truly try tbe issue joined between the State of'Alabama and the defendant, Joe Johnson.” We held, tbat an essential part of tbe oath required to be administered to juries by said section 4092 was omitted, to-wit: It' omitted that part of tbe oath tbat requires tbe jury “a true verdict to render according to tbe evidence.” And as tbe oath was set out and stated in tbe minute entry, no presumption could be made tbat any other oath was administered, or that tbe oath set out was not tbe entire oath so administered.

Tbe omission above stated was the real objection to tbe sufficiency of tbe oath as stated, and being an essential part of tbe oath required by the statute, *&c.,*tbe judgment of tbe court below was erroneous. ' What is said in tbe opinion, as to tbe omission of tbe words “ so help you God,” (although they are tbe most solemn part of tbe oath, and should never be "omitted, yet being a mere *invocation*made by tbe officer administering tbe oath, and seldom or never appearing in tbe fullest and most perfect entries, we think it but fair to presume they were not, in fact, omitted in tbat case,) gave too much importance to tbe supposed omission of said words by tbe officer who administered tbe oath.

Tbe rule to be derived from tbe foregoing cases, may be ■stated as follows, to-wit; Tbat in capital and other felonies, when the oath administered to tbe jury is set out in tbe minute entry of tbe court, and an essential part of tbe oath required by tbe statute is omitted, the conviction will be erroneous. If, however, tbe entry does not pretend to set cut tbe oath, but states tbat the jury was “ duly sworn according to law,” or “was duly sworn,” in either ease it will be presumed tbe jury was properly sworn, according to tbe form prescribed in section 4092 of tbe Revised Code.

In tbe present case, the defendant, appellant, was in-dieted for murder, and convicted of manslaughter in the *266first degree. The minute entry of the trial states that the jury was duly impanneled and sworn, well and truly to try the issue, and true deliverance make, between the State of Alabama and Bill Gardner, the prisoner at the bar, and a true verdict render according to the evidence. This oath contains all the essentials, and is substantially in the form prescribed by section 4092 of the Revised Code.

The objection of defendant’s counsel, that a copy of the indictment and list of the jurors, &c., were not delivered to defendant one entire day before the day appointed foE his trial, is not sustained by the record. The sheriff certifies, officially, that he handed to the defendant a list of the jurors summoned for his trial, with a Copy of the indictment, on the 19th day of March, 1872, and the order of the court shows that the trial was set for the 21st day of said month, and the record shows that the trial in fact took • place on the next day, tbe 22d of said month. Another reason why this objection is not well taken is, it does not appear that the defendant w"as in actual confinement. — Revised Code, § 4171.

After a careful examination, we discover no error in the record.

The judgment must be affirmed, at the appellant’s costs.