#### BUGG *vs.*THE STATE.

[indictment eob mdbdeb.']

1. *Oath administered to jury ; what recital of, not sufficient to uphold verdict*— The judgment entry in this case recites : “ Thereupon came a jury of good and iawful men, to-wit, A. L. Mathews and eleven others, good and lawful men, who being duly elected, tried, and sworn to well and truly try the issue joined and true deliverance make between the State of Alabama and the defendant, upon their oaths do say ” &c.— *Held,*upon the authority of *Joe Johnston v. The State,*to be insufficient to uphold the verdict.

2. *List of jurors and copy of indictment; when failure to serve on defendant is a reversible error.■*— Where the defendant is in actual custody, charged with a capital offense, the record must show that defendant was served with a copy of the indictment and list of jurors at least one entire day before the day set for his trial.

Appeal from Circuit Court of Montgomery.

Tried before Hon. James Q. Smith.

The appellant, who was indicted for tlie murder of Harper James, was convicted of murder in the second degree and sentenced to the penitentiary for twenty-five years. The record shows that he was confined in jail at the time of the trial, and it does not show service upon him of a copy of the indictment and list of jurors summoned for his trial at least one entire day before the day set for his trial.

The following is the judgment entry so far as relates to the verdict of the jury: “ Came the State by its attorney, and the defendant in his own proper person and by attorney, and the bill of indictment pending against him for murder being-read to him, he pleaded thereto not guilty, and thereupon came a jury of twelve good and lawful men, to-wit, A. L. Matthews and eleven others, good and lawful men, who being duly elected, tried, and sworn to well and truly try the issue joined and a true deliverance make between the State of Alabama and the defendant, W. R. Bugg, upon their oaths do say, ‘We, the jury, find the *51prisoner guilty of murder in tbe second degree, and sentence bim to tbe penitentiary for twenty-five years.” ’

Tbe appeal is taken on tbe record, and tbe errors assigned are—

1. Tbat tbe jury was not properly sworn.

*2.*Tbat it does not appear tbat a copy of tbe indictment and list of jurors were served upon appellant as required by law.

"Watts *&*Troy, for appellant,

cited *Johnson v.*State, at present term, and *Lacy v. State,*45 Ala. 80.

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

Tbe record is a bistory of tbe facts of a case from its commencement to its conclusion. It does not, in all its parts, set out in *ipsissimis verbis,*wbat is said. A substantial narration of all the events of a case in a clear, orderly and perspicuous manner, is all tbat is required. No form is recognized as absolutely necessary.— *Grist v. The State,*21 Ala. 137- 48; 1 Bisb. Or. Pr.

Tbe record in this case recites that an oatb was administered to the jurors to tbe effect tbat they would well and truly try the issue joined, and true deliverance make. It does not set forth tbe words or tbe form of tbe oath. No objection was made to tbe mode in which tbe jurors were sworn. In tbe absence of any evidence to tbe contrary, or any exception on tbe part of tbe prisoner, tbe court is bound to presume that tbe legal oatb was duly administered; or, if there was any irregularity in swearing tbe jury, it was waived by the *accused.*— Hall *v. The State,*at present term.

Eor many years tbe records of criminal cases in Alabama only stated tbe fact tbat tbe jurors were “ elected, tried, and sworn well and truly to try tbe issue joined.” Such an entry was considered sufficient by the officers charged with the duty of making up of records, and their custody, and has indeed been decided in tbe following cases to contain all tbat is necessary to show tbat tbe prisoner was tried by his peers duly sworn: *Pile v. The State,**525 Ala. 72-74; *Grist v. The State,‘¿1*Ala. 137-148; *McGuire v. The State,*37 Ala. 161-183. Reason, as well as authority, sustains the sufficiency of the above entry. How could the prisoner be “well and truly tried” in a court of Alabama, unless he was tried on proper evidence according to law?

Indeed, the only cases that deny the correctness and sufficiency of the above entry have been decided at the present term.

If this recitation of the swearing of the petit jury be deemed insufficient because the record does not contain what it never purposed to contain, why is the entry that the grand jurors were duly “ drawn, impanneled and sworn,” considered sufficient, without setting out the oath that they would “ diligently inquire, and due presentment make,” <fec,? This caption is the part of every indictment. If the record should contain the words of the oath, instead of a recital of the fact that the jurors were sworn, then no person has been properly indicted for years in Alabama. Notwithstanding this fact, many have been convicted and punished, and that, too, when it was the duty (as clearly expressed in Andrew Johnson’s case,) of the court to examine the whole record, and if any error exists, to reverse the judgment.

It seems to be just as important that the grand jury should be properly organized and legally sworn when they enter upon their duties, as it is that the jurors trying the cases should be properly impanneled and sworn. If a recitation of the fact of the administration of an oath, without stating what it is, be sufficient in the first instance, why should not the recital of the same fact be sufficient in the second ? That, in the first instance, it is sufficient, is shown by the fact that in its search for errors, this court has never discovered that such a statement in the record of the drawing and swearing of the grand jury is erroneous.

■ The record does not set out the oath, but only states for what purpose the jurors were sworn. It is submitted, that to reverse the case for not employing words in a particular collocation, is almost too technical. We wonder that a. *53notorious murderer was acquitted formerly because the word “bracliio” was spelt “bracio,” and another went unwhipped of justice because “ alias ” was spelt “ alius.” Are we not relapsing into tbe reign of technicalities when we reverse tbe sentence of a murderer because tbe clerk, in describing or telling what was done, omits to say that tbe jurors were sworn “ a true verdict to render according to the evidence?”

B. E, SAEEOLD, J.

Tbe judgment is reversed and tbe cause remanded, on tbe authority of *Joe Johnson v. The*State, at tbe present term, in respect to tbe oatb administered to tbe jury. And, of *Lacy v. The State,*45 Ala. 80, as to tbe service on tbe prisoner of a copy of tbe indictment and a bst of tbe jurors summoned for tbe trial.