(82 South. 469)

#### GLASS v. STATE.

(5 Div. 725.)

Supreme Court of Alabama.

May 15, 1919.

Rehearing Denied June 19, 1919.

1. Criminal Law <®=o1086(10, 11) — Capital Cases — Orders oe Record.

In capital cases, the statutory orders of the court as to the setting of the day for trial, fixing the number of the special venire, and that a copy of the indictment and venire be served on* defendant, etc., are matters of record proper, and must so appear, though service of the copies of the orders on defendant need not affirmatively appear.

2. Jury &wkey;65 — Filling Jury Box — Duty oe Commissioners.

Jury commissioners in capital cases should be careful to comply with the statutes as to the manner and mode of filling and keeping filled the jury box of the county.

Appeal from Circuit Court, Chilton County ; Gaston Gunter, Judge.

Perry Glass was convicted of murder in the first degree, and he appeals.

Reversed and remanded.

See, also, 201 Ala. 441,-78 South. 819.

Longshore, Koenig & Longshore, of Columbiana, and J. B. Atkinson, of Clanton, for appellant.

J. Q. Smith, Atty. Gen., and Horace Wilkinson, Asst. Atty. Gen., for the State.

MAXBTELD, J.

Appellant was indicted and convicted of murder in the first degree, and sentenced to the penitentiary for life.

The statutes of this state have always required special venires for the trial of capital cases. They have also required that the trial court should, by orders of record, provide for such special venires.

[1] While these statutes have from time to time been changed, and some of the rigidity of former jury laws has been removed by amendment and construction, yet a compliance with these provisions as to the orders of the court in setting the day for trial, fixing the number of jurors who shall constitute the venire from which the jury shall be selected, has been held to be mandatory, though other provisions of the jury law áre directory only. These orders required by the court, which must be of record, stand on different grounds from requirements of ministerial officers, such as service upon the defendant by the sheriff of copies. This service by the sheriff need not affirmatively appear, because it is not necessarily a matter of record; but the statutory orders of the court as to the setting of the day for trial, fixing the number,of the special venire, and that a copy of the indictment and venire be served on the defendant, etc., are matters of record proper, and- must so appear.

This distinction was pointed out by this court at an early date, and lias been ever adhered to. In the Spicer Case, 69 Ala. 162, Somerville, J., said:

> “True it was helchin Paris’ Case, 36 Ala. 232, that in the absence of all objection by the defendant, a judgment of conviction will not be reversed because the record does not affirmatively show a formal arraignment of the prisoner, and the service on him of a copy of the indictment and a list of the venire. But the last omission was the act of a ministerial officer, and the first related to a preliminary proceeding which could be waived by pleading to the indictment. Fernandez v. State, 7 Ala. 511; 1 Bish. Cr. Proc. § 733. And while it was held in the case of Aaron v. State, 39 Ala. 684, by a divided court, and again in Taylor v. State, 42 Ala. 529, that in ordinary cases of felony the record need not affirmatively show that the prisoner was asked by the court, before sentence was pronounced against him, if he had anything to say in arrest of judgment, yet neither of these were capital cases, and in Perry v. State, 43 Ala. 21, which was a capital case, the opposite conclusion was reached, and is probably supported by the weight of authority. 1 Bish. Cr. Proc. § 1118.

> “We take the principle then to be reasonable and sound that where, at least in every trial for a capital offense, the statute peremptorily requires some order to be made by the court, which is of prime importance to a prisoner in securing to him the constitutional guaranty that the ‘right of trial by jury shall remain inviolate,’ the action of the court in this regard becomes an essential part of the record, and must affirmatively appear to have been performed. ‘The forms of records are deeply seated in the foundations of the law, and as they conduce to safety and certainty, they ought not to be disregarded when the life of a human being is in question.’ ”

The record in this case is fatally defective to support the judgment of conviction. It wholly fails to show that the court fixed the number of persons who should constitute the venire for the trial. The court did enter an order setting the day for the trial, and directing that 20 special jurors be drawn and summoned, and directed the sheriff to prepare to serve on defendant a list of the regular jurors summoned for the week, with a list of the special jurors drawn for the week. But it nowhere appears how many regular jurors were summoned for the week, nor does it show that there were 30 of such regular jurors. It would require that there should have been 30 of the regular jurors, in order that the special venire should have been 50, the minimum number allowed.

If the record had shown, as it did in Costello’s Case, 176 Ala. 1, 58 South. 202, how many regular jurors there were, and that that number added to the number of special jurors drawn made 50, and that the aggregate number should constitute the special venire *220for the trial of tlic case, then the conviction might be upheld, though it did not in terms name any certain number which should constitute the venire for the trial. The number could be easily ascertained by merely adding the number of the regular and special jurors which were affirmatively shown. That cannot be done in this case, for the reason the number of regular jurors for that week is not made to appear, nor is it made to appear that there was as many as 30, which was requisite to give the mimimnm number of 50, which the statute requires. There are other defects and irregularities in the order which need not be mentioned.

The necessity of these orders as to venires in the trial of capital cases has been so often pointed ont by this court, and it is so easy to comply therewith, and so many forms have been held by this court to be a sufficient compliance, until it does seem that trial courts and solicitors would see to it that the statutes and law in these important matters were complied with.

Great and serious complaint is made on this appeal that the jury box of Chilton county, from which the jurors were drawn,' was not filled and kept in the manner and mode provided by law. As the case must be reversed as for the defect in the record, and as the box has evidently been refilled since the trial, it is unnecessary to- pass on the question.

[2] As a matter of caution, however, it is not improper to say that jury commissioners should be careful to comply with the statutes on this subject. The law vests them with a discretion as to the names which should be placed in the box, but' it also enjoins upoi> them duties, and they should not arbitrarily or negligently fail to comply with the statutes. We do not mean to intimate that there has been such arbitrary or negligent action in this case, but merely call attention to evils that might result if -venires had to be quashed because the jury commissioners had failed to discharge the simple duties enjoined upon them.

The record in this case does show that there were placed in the jury box a very few names compared with the number of qualified jurors in the county. While the law does not require that the name of every person who is qualified or eligible for jury duty should be placed in the box, yet the jury commissioners should, in so far as they can reasonably do so, comply with the statute. The importance of complying with the statute as to filling the jury box with names from which venires are to be drawn has been discussed in the cases of Wilkins v. State, 112 Ala. 55, 21 South. 56; Steel v. State, 111 Ala. 32, 20 South. 648; Johnson v. State, 102 Ala. 12, 16 South. 99; West v. State, 118 Ala. 100, 24 South. 48.

For the error noted the judgment must be reversed, and the cause remanded.

Reversed and remanded.

ANDERSON, O. J., and SOMERVILLE and THOMAS, JJ., concur.