Allen v. The State

Allen v. The State. Murder. [Decided April 7, 1906, 40 So. Rep. 660.] 1. Jury; Summoning; Drawing Special Venire for Trial. — The provisions of .§ 5004, Code 1896, are mandatory in the trial of a capital case, and a judgment entry which fails to show that the venire was drawn from the jury box by the judge, is fatally defective and will not support a conviction. Appeal from Gadsden City Court. Heard before Hon. John H. Disque. Tlie defendant was indicted for the murder of Lucy Hammond by shooting her with a pistol. His defense was not guilty by reason of insanity. He was convicted and sentenced to death. The facts upon which the opinion is rested sufficiently appear therein. No counsel marked for appellant. Massey Wilson, Attorney-General ,for State.. [MAJORITY — ANDEESON, J.] ANDEESON, J. Section 5004 of the Code of 1896 requires, among other things, in capital cases, that a venire of not less than 25 nor more than 50 names shall be drawn by the presiding judge, etc. This statute is mandatory, and a compliance therewith must affirmatively appear in the record. — Scott v. State, 37 South. 366 ; Kinebrew v. State, 132 Ala. 8, 31 South. 567 ; Burton v. State, 115 Ala. 1, 22 South. 585 ; Spicer v. State, 69 Ala. 159. The judgment entry in the case at bar does not show that a venire was drawn by the judge from the jury box as required by the above statute. It says the court ordered .the box to the brought into court and that 30 be drawn, and that proof was made that service of the venire so drawn, etc., was made upon the defendant; but there is nothing to show that the venire was drawn from the jury box by the judge, etc. The judgment of the city court is reversed, and the cause remanded. Weakley, C. J., and Haralson, Simpson, and Denson, JJ., Concur.