Breden v. State

SOMERVILLE, J. This is a capital case, being an indictment for murder. The jury was organized under the act of February 28th, 1887 (Acts 1886-87, p. 151), which is applicable to the county of Lawrence. The trial of the defendant was set for the week during which the order was made, and not for a week subsequent. Such being the case, section 10 of this statute requires that the presiding judge shall, in open court, draw from the box containing the names “not less than twenty-five nor more than fifty of said names, for each capital case,” a list of which the clerk is required to make out, and the sheriff is thereupon required to summon them. It is provided, that “the names of the jurors so drawn, together with the panel of petit juror's organized for the week, shall constitute the venire from which the juries, to try said capital case or cases, shall be selected.” There is a proviso to the section which does not affect this case. 1. The order and proceedings of the court, in regard to the organization of the jury, substantially conform to the requirements of this statute. — Goley v. The State, 85 Ala. 333; Morrison v. The State, 84 Ala. 405. 2. The order given as to the service of the venire on the defendant was equally free from objection. It was, that “the sheriff shall serve a copy of' the special jury drawn [by the judge] and ordered [to be] summoned to try said case, [23] together with a copy of the jurors organized for the present week of the court,” including also a copy of the indictment. This embraced the persons from whom the defendant was required to select his jury, and necessarily constituted the list, to the service of which he was entitled in order to enable him intelligently to make such selection. 3. Section 4449 of the Code of 1886, which describes the venire required to be served on the defendant as “a list of the jurors summoned for his trial, including the regular jury summoned for the week in which the case is set for trial,” must be considered as modified by the above cited act of February 28, 1887, so far as concerns the counties to which the latter act is applicable. The Code, it is true, went into effect on December 25th, 1887 — a later day than the act in question; but the act is made operative as a law of superior force, by section 2 of the act of February 28th, 1887, adopting the Code, which section provides as follows: “No act passed at the present session of the General Assembly shall be repealed, or affected in any manner by the adoption of this Code.” 4. The record fails to show affirmatively that a copy of the venire and indictment was served on the defendant by the sheriff, as ordered. But, in the absence of any objection in the trial court, based on this alleged defect, we will presume that the sheriff discharged his duty, by serving these papers in due time in obedience to the order of the court. Spicer v. State, 69 Ala. 159; Paris v. State, 36 Ala. 232; Shelton v. State, 73 Ala. 5; Clark v. State, 78 Ala. 474; and other eases cited on brief of Attorney-General. "We discover no error in the record, and the judgment is affirmed.