SOMEEVILLE, J.
(1) The error in the jury panel, being unknown to defendant and his counsel, was very clearly a good ground for new trial, if the objection was not waived by unreasonable delay in its assertion.
(2) If, after its discovery, defendant had reasonable time and facility for interposing his objection before the verdict was returned, his failure to do so would doubtless have been a waiver of the error; for he would have had no right to thus speculate on the chance of a favorable verdict and afterwards complain of the error.—Hoskins v. Hight, 95 Ala. 284, 11 South. 253.
(3) So, if defendant or his counsel had personal knowledge of the appearance and identity of the stricken jurors, their failure to note their presence on the panel during the trial would no doubt have been such negligence as to foreclose any complaint of the verdict on that ground.
(4, 5) But the bill of exceptions, which does , not purport to set out all the evidence before the court on the motion, does not show any negligence by the movant in-either particular, and we must presume that the trial court had cognizance of facts, if any there could be, which would justify its ruling; and we conceive that movant’s counsel may have been engaged in the trial of another cause at the momeiit of discovery, which could not be [403]*403conveniently suspended, or else the verdict may have been returned within a few minutes, or even seconds, thereafter. In either event, we would not be willing to declare that defendant’s brief delay was per se a waiver of his rights in the premises.
For these reasons the judgment will be affirmed.
Affirmed.
Anderson, C. J., and Mayfield and Thomas, JJ., concur. Free access — add to your briefcase to read the full text and ask questions with AI