[Johnson v. State.]

CHAS. G. BROWN, Attorney-General for the State, cited Johnson v. State, 31 So. Rep. 951; Coles v. State, 105 Ala. 76; Maxwell v. State, 89 Ala. 150; Chambless v. State, 78 Ala. 466; Adams v. State, 31 So. Rep. 851.

MCCLELLAN, C. J.-The indictment was sufficient in averment. It had been regularly returned and presented by a duly constituted grand jury. On being arraigned the defendant entered his plea of "not guilty” to it. No plea of former jeopardy or of former acquit tal was ever presented or filed or offered to be made or filed. If it be conceded that the defendant had been in jeopardy or, in legal contemplation, acquitted under a former indictment for the same offense by reason of the facts that he had been put to trial on a former indictment, that in the course of that trial the evidence developed a variance as to the name of the person alleged to have been robbed, that the solicitor had thereupon dismissed the purosecution under section 4918 of the Code with a view to the preferment of another indictment and that the proper order to that end was not entered by the court (McClellan v. State, 121 Ala. 18), such jeopardy or acquittal furnished no ground for quashing the present indictment, but should have been specially pleaded, and the special plea, or pleas, should have been interposed before the plea of "not guilty," else the point is waived.-Rickles v. State, 68 Ala. 538; Jordan v. State, 81 Ala. 20, 30, and cases cited. So if the facts had involved matter proper for a motion to quash, the motion should have been made before pleading to the indictment; and had the facts been such as would have justified the quashing of the indictments and the motion to that end had been seasonably made, yet, it would seem that it was in the unrevisable discretion of the trial court to overrule the motion and put the defendant to his demurrer or plea in abatement.-State v. Jones, 5 Ala. 666, 670; Nixon v. State, 68 Ala. 535; Bryant v. State, 79 Ala. 282. The appellant can take nothing for the overruling of his motion to quash the indictment.

P

[Bailey v. The State.]

The cause being set down for trial on a day of a subsequent week, the defendant was entitled to have served upon him a list containing the names of the special jurors ordered for his case and the names of the regular jurors who had been drawn and summoned for such subsequent week. A talesman brought in to fill the place of a regular juror who, having been drawn and summoned for that week, failed to attend or was excused, had no place on the special venire for defendant's trial, nor, consequently, on the list served on him. The motion of the defendant to quash the venire on the ground that the copy served on him did not contain the name of one such talesman was, therefore, propery overruled. Johnson v. State, 133 Ala. 38.

Equally without merit was the defendant's objection to going to trial based on the ground that twelve of the special venire were at the time engaged in the consideration of another case.

Violations of municipal laws are quasi criminal of fenses. Moreover, the police court of Birmingham has jurisdiction of minor offenses against State laws. The facts that defendant had been convicted two or three times in said court and had once been convicted of a felony and sent to the penitentiary supplied ample predicate for the solicitor's remark: "This oft-repeated criminal should be severely dealt with."

The refusals of the court to give the affirmative charges requested by defendant were so obviously proper as not to admit of discussion.

Affirmed.

Bailey v. The State.

Indictment for Murder.

1. Organization of jury; not necessary for clerk to make certifi cate as to all of the names of the regular jurors being upon the venire.-In the drawing and empannelling of a jury in a capital case, there is no provision of the statute which re

[Bailey v. The State.]

quires that the clerk should make a certificate that the names of the regular jurors summoned for the week in which the case was set for trial and served upon the defendant were the jurors drawn and summoned for that week, and the failure of the list served upon the defendant to be so certified to by the clerk, constitutes no ground for quashing the venire.

2. Same; list served upon defendant should not include talesmen placed upon the jury for the week the cause is tried.—In the selecting and drawing of jurors for the trial of a capital case in Dallas county, the judge fixed the number of jurors from which the jury to try the case was to be selected, at sixty-five, and then ordered to be drawn from the jury box the names of thirty-two persons who, with the regular jurors drawn for the week in which the case was set for trial made the number sixty-five. An order was made commanding the sheriff to summon the thirty-two persons so drawn to appear on the day of the trial, and a further order was made directing the sheriff to forthwith serve on the defendant or his attorney of record, a copy of the indictment and a list of the jurors summoned for the week in which the case was set for trial, and the names of the thirty-two jurors drawn to make the number to be served upon the defendant sixty-five. In order to complete the regular juries for the week in which the case was set for trial, three talesmen were placed upon one of the juries, on the Monday morning preceding the trial on Thursday. Held: That it was not necessary to have served the defendant with the names of the tree talesmen so drawn, in order to complete the regular juries for the week.

APPEAL from the City Court of Selma.

Tried before the Hon. J. W. MABRY.

The appellant in this case was indicted and tried for the murder of Robert Hunter, was convicted of murder in the first degree, and sentenced to be hung.

Before the trial was entered upon, the defendant moved the court to quash the venire upon the following grounds: "First. In the pretended certificate of the clerk giving a copy of the jurors summoned for the week in which this case was set for trial, said clerk in said certificate says that the names numbered from 1 to 33, both inclusive, are the names of the regular jurors summoned for the week in which this case is set for trial.

[Bailey v. The State.]

And said certificate does not say that the names mentioned are the jurors drawn and summoned for the week. And defendant moves to quash the venire because said clerk in his said certificate does not say that they are the jurors drawn and summoned.

"Second. Because the records of this court show that the following named persons were drawn and summoned as jurors for said week, viz: Daily F. Jacob, Thomas W. Hall and Truman McGill, and the names of said jurors are not included in the list served upon the defendant. And defendant moves to quash the said venire because the names of said jurors are not included in the list so served upon him as the statute requires." The facts pertaining to this motion are sufficiently stated in the opinion. The motion was overruled, and the defendant duly excepted. The ruling of the court upon this motion constitutes the only question reviewed by the court on the present appeal.

B. F. WILSON, for appellant.

CHAS. G. BROWN, Attorney-General, for the State, cited Acts 1898-99, p. 69; Johnson v. State, 31 So. Rep.

51.

TYSON, J.—The motion to quash the venire proceeds upon two grounds. No proof was offered in support of the first ground. Besides, it is wholly untenable. We find no provision in the statute requiring the clerk to make a certificate that the names of the regular jurors summoned for the week in which the case was set for trial, served upon defendant, were the jurors drawn and summoned for that week. Indeed, there is no provision requiring him to make any certificate in respect to this matter at all. All that is required of him, doubtless, is to issue the order to the sheriff to summon the persons drawn and summoned as jurors, make a list of the names of those persons from which the jury must be selected for the trial, make a copy of the indictment, deliver to the sheriff the list and copy of indictment to be served by him upon defendant, or his counsel. The second ground is equally as unmeritorious. Following

[Bailey v. The State.]

the requirement of section 10 of the Act regulating the selection, drawing and empanneling of jurors for Dallas county, (Acts 1898-99, p. 69), on the 15th day of January, shortly after the convening of the court at that term, the defendant was arraigned upon the indictment, and Thursday, the 6th day of February following, was set for the trial of his case. At the same time the presiding judge in open court, drew from the jury box the names of thirty-two persons, who, with the regular jurors summoned for the week in which his case was set for trial, were necessary to make the number sixty-five, the number fixed by the order to be served upon defendant from which the jury was to be selected; and an order was entered commanding the sheriff to summon those thirty-two (32) persons to appear on the 6th of February, as was also an order entered directing the sheriff to forthwith serve on the defendant or his attorney of record, a copy of the indictment and a list of the names of the jurors summoned for the week in which the case is set for trial, and the names of those thirty-two (32) drawn to make the number sixty-five. These sixty-five persons clearly constitute the venire from which the jury to try the defendant was to be selected; and were the only names he was entitled to have served upon him. There is no dispute but that he had the benefit of those names, but the insistence, in motion, is that he should have been served with the names also of the three (3) talesmen who were placed upon one of the juries, in order to complete it, on the Monday morning preceding his trial on the following Thursday. To have allowed him those names would have increased the number from sixty-five to sixty-eight, which is unauthorized by the provisions of section 10, which confines the selection of the jury to the sixty-five. Indeed, the language of the section expressly excludes the idea which seems to have inspired the motion, that the persons named in it belonged on the venire for the trial of this case. Johnson v. State, 133 Ala. 38; 31 So. Rep. 951. The motion was properly overruled.

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