Opinion
6 Div. 662.
August 19, 1930.
Appeal from Circuit Court, Jefferson County; John P. McCoy, Judge.
Louis Jackson, alias Sherbert, was convicted of murder in the second degree, and he appeals.
Affirmed.
The order for special venire is, in substance, as follows:
"It appearing to the court that * * * Louis Jackson alias Louis Sherbert [and others named] each stand indicted for a capital felony, and that each of said cases are set for trial in this court on Monday, the 13th day of May, 1929, and each of defendants being in open court, the court did on this the 4th day of May, 1929, make an order commanding the sheriff to summon one hundred persons" etc.
"The court thereupon in open court drew from the jury box as directed by law, the names," etc.
Harsh Harsh and Francis Hare, all of Birmingham, for appellant.
The fact that the record does not affirmatively show that defendant was personally present in court when the court appointed a day for his trial necessitates a reversal. The statute requires that the court appoint a day for the trial of a prisoner, and it will not be presumed from the mere silence of the record that the order was made or was waived or that the prisoner was present when the order was made. Code 1923, § 8650; Burton v. State, 115 Ala. 1, 22 So. 585; Spicer v. State, 69 Ala. 159; Sylvester v. State, 71 Ala. 17. The judge must perform the manual act of drawing the names and cannot authorize another under his supervision to do it. Code 1923, § 8644; Scott v. State, 141 Ala. 39, 37 So. 366.
Charlie C. McCall, Atty. Gen., and Merwin T. Koonce and Luther Patrick, Asst. Attys. Gen., for the State.
Where no question was raised in the lower court as to validity of special venire, it is unnecessary for such order to appear in the transcript; it is presumed the proceedings are regular. Code 1923, § 3249; Cherry v. State, 214 Ala. 519, 108 So. 536; Shields v. State, 221 Ala. 321, 128 So. 786; Burks v. State, 15 Ala. App. 459, 73 So. 824; Charley v. State, 204 Ala. 687, 87 So. 177; Anderson v. State, 204 Ala. 476, 85 So. 789; Hendley v. State, 200 Ala. 546, 76 So. 904; Hardley v. State, 202 Ala. 24, 79 So. 362; Paitry v. State, 196 Ala. 598, 72 So. 36; Waldrop v. State, 185 Ala. 20, 64 So. 80.
In the light of Code 1923, § 3249, there being no question thereon raised before the trial court, the transcript here need not have contained "the order of the court for a special venire," and it might be that we could simply disregard the said "order" as it appears before us. But, in any event, we are of the opinion that the same sufficiently shows the presence in court of the appellant at the time same was made, in all respects as required by law. See Burks v. State, 15 Ala. App. 459, 73 So. 824.
In the opinion in the case of Shields v. State, 128 So. 786, our Supreme Court, speaking through Mr. Justice Brown, said: "No question was raised as to the regularity of the proceedings in respect to a special venire for the appellant's trial, and, in the absence of some question being raised on the trial, the statute creates a presumption that the proceedings in this respect are regular," citing Code 1923, § 3249, and Cherry v. State, 214 Ala. 519, 108 So. 536.
What we have just next above quoted applies in this case, and disposes of, adversely to appellant's contention, his "assignment of error" No. 2.
The other questions argued in appellant's brief, filed here, have each been examined by us. It hardly seems profitable to discuss them seriatim. We think, and hold, that no error, prejudicial to any right of appellant, appears in any ruling made by the trial court.
It accordingly becomes our duty to affirm the judgment appealed from, which we hereby do.
Affirmed.