Carmack v. State

67 So. 989, 191 Ala. 1, 1915 Ala. LEXIS 408

• Court: Supreme Court of Alabama
• Decided: January 21, 1915
• Status: Published

Opinion

PER CURIAM.

It appears that the special venire to try this case was fixed at 75, to be composed of the regular jurors for the week, together with 18 special jurors drawn by the court. It also appears that the trial court, upon the organization of the regular juries for the week, excused 26 jurors who were upon the venire to try this case, and made no order requiring them to be resummoned for the trial of this defendant, as provided by the act of 1909 (page 317.)—Waldrop v. State, 185 Ala. 20, 61 South. 80. It thus appears that by excusing these 26 jurors, and in not ordering them summoned to try this case, the special venire was in effect reduced to 19 — less than the minimum number required by law. This question was gone over in the case of Tennison v. State, 188 Ala. 90, 66 South. 112, but a majority of the court held that the action of the court was not questioned by a proper and timely objection. Here, however, the record shows that the defendant did make a proper and seasonable objection to being placed upon trial with the venire in this condition; and we think that the trial court erred in so- placing him upon trial.

Reversed and remanded.

All the Justices concur except de Graffenried, J., not sitting.