Opinion
1 Div. 168.
May 12, 1921.
Appeal from Circuit Court, Mobile County; C. A. Grayson, Judge.
Harwell G. Davis, Atty. Gen., for the State.
No brief came to the Reporter.
The court orders an affirmance in this case on the authority of Walker v. State, 85 So. 787. The question involved has been decided in several cases, but I am unable to agree. The law had been that the special venire to try a capital case should be composed of the regular jurors "drawn and summoned" for the week, plus enough special jurors to make up the number designated by the court. The jury in this case was made up from a venire constituted according to that law. But in 1919 the Legislature had commanded that the venire to try a capital case should comprise the regular jurors "drawn" for the week, plus enough special jurors to make up the number designated in the order of the court, and the further command of the statute (Laws 1919, p. 1041, § 32) now is that the court "must cause a list of the names of all the jurors drawn for the week in which the trial is set, and those drawn as provided in this section [of the Act of 1919], together with a copy of the indictment, to be forthwith served on the defendant by the sheriff." Manifestly no such venire as the law commands was constituted in this case; manifestly no such list as the law requires was served on defendant. Both the venire and its copy — the list — contained names which the law says they shall not contain. This divergence from the law may be a small matter, but I cannot agree that any court has authority to deny its application in any case to which the Legislature intended it should be applicable.
Affirmed.
All the Justices concur, except SAYRE, J., who dissents.