
    Floyd v. The State.
    
      Indictment for Murder.
    1. (fraud juries at special terpis. — Under the provisions of the act approved February 13, 1875, “to provide for holding special terms of the Circuit Court” ,;Sess. Acts 1874-5, pp. 201-2), that court has the same power to organizo a grand jury at a special term as at a regular term.
    2. Special venire for trial of capital case. — The statute which requires that the special venire in a capital case shall include “ those summoned on the regular juries for the week ” (Bov. Code, § 4173), is shown by a subsequent section (4177) to mean the regular jurors who are “in attendance,” and not to include those who, though summoned as regular jurors, were excused or discharged when the regular juries were organized.
    3. Objection to venire, on account of mistake in name of juror. — A mistalce in writing the surname of one of the jurors specially summoned for the trial of a capital case, in the list served on the prisoner, is no ground for quashing the venire, although, excluding the name of that juror, the number specially summoned is less than fifty (Rev. Code, § 4173): the name may be discarded (§ 4175), and another juror summoned.
    Feom the Circuit Court of Geneva.
    Tried before the Hon. Jas. E. Cobb.
    The indictment in this case was.found at a special term of said court, held on the 19th day of July, 1875, pursuant to an order made and published by Hon. H. D. ClaytoN, tbe presiding judge of the circuit; and charged the defendant with the murder of Aaron Miller. “ At the regular March term, 1876,” as the bill of exceptions recites, “the defendant having been arraigned on a former day of tbe term, and having pleaded not guilty, the cause came on to be beard, and the following proceedings were had: The defendant moved to quash the venire, because tbe names of all those persons who had been summoned by tbe sheriff to appear at this term as regular jurors did not appear on said venire, nor on tbe list served on the prisoner; and proposed to prove, in support of his motion, that on the first day of the term, when the court was organizing the juries, and when the sheriff called the list of those summoned as petit jurors, twenty-eight persons answered to the call; that the court, after selecting and. impanneling two juries of twelve men each, as tbe law requires, did not swear any others, nor retain them, but remarked that no more would be needed, and that tbe others might consider themselves discharged; that this defendant did not consent nor object to this action of the court; and that the four men who were not selected nor sworn were not then present, and had not been specially summoned for this cause, and had not been otherwise summoned as regular petit jurors. The court overruled the motion to quash, and the defendant excepted. 'As the drawing of the jury pioc.eeded, the name Atkinson was drawn; and the defendant again moved to quash the venire, because the person who appeared and answered to said name, and who had been summoned by the sheriff, was named Adkison, and not Atkinson ; which motion the court overruled, and the defendant excepted. The court then proposed to the defendant, that he might have the opportunity or not, at his election, to take said Adkison. The defendant refused to say whether he wished the said Adkison put on him, or not; but, when the court offered said Adkison to him, objected to receiving him, or passing on him. Because of this objection by the defendant, the court caused said Adkison to stand aside, and the name of Atkinson to be discarded, and another to be forthwith summoned to supply his place; which was done. To this action of the court the defendant excepted.”
    W. D. Robbbts, for the defendant.
    The statute imperatively requires, that all the regular jurors “ summoned for the week” shall be included in the special venire summoned for the trial of a capital case. — Rev. • Code, § 4173. And the same statute requires that the special venire shall consist of “not less than fifty persons;” while the record shows that, excluding the name of Atkinson, or Adkison, not fifty persons were summoned. Again, the indictment is void, because found at a term not authorized by law. Davis v. The State, 46 Ala. 80; Overstreet v. The State, 46 Ala. 30; Oarliek v. Dmn, executor, 42 Ala. 404.
    Jho. W. A. SaNEORd, Attorney-General, for the State,
    cited Session Acts 187U-5, p. 201; Fields v. The State, 62 Ala. 349; Rev. Code, § 4177; Hall v. The State, 40 Ala. 698; Bill vJ The State, 29 Ala. 34; Birdsong v. The State, 47 Ala. 68; Wesley v. The State, 52 Ala. 182.
   MANNING, J. —

The special term of Geneva Circuit Court, at which the indictment in this cause was found, was held in pursuance of the “ act to provide for holding special terms of tbe Circuit Court,” approved February 13, 1875._ By it, are given tbe same power, jurisdiction and authority, at a special term, “to organize a grand jury, and to try and dispose of all causes that may come before said court, both civil and criminal, and to do and perform all tbe business of such court, as at a regular term of such court.” Tbe objection raised to tbe finding of tbe indictment at a special term of tbe court, or at a term not authorized by law, is not sustained. The indictment is in tbe form prescribed by tbe Bevised Code, and is, therefore, sufficient.

Section 4173 of tbe Bevised Code requires, for tbe trial upon indictments charging a capital offense, that an order be made, “commanding the sheriff to summon not less than fifty, nor more than one hundred persons, including those summoned on the regular juries for t£e week,” from which to constitute a jury to try tbe accused. Persons who were summoned for regular jurors, but did not appear, or who, appearing, were for some cause excused, or who, because tbe regular juries for tbe week were completed before their names were drawn out, were discharged, and departed from tbe court, although “summoned,” cannot be said to be “on tbe regular juries for tbe week.”- Tbe expression used in tbe statute is ambiguous and incorrect. "What is meant by it, is shown by section 4177 : “ On tbe trial of a person charged with a capital offense, tbe names of tbe jurors summoned for bis trial, as well as the names of the regular jurors in attendance, must be written on slips of paper, folded or rolled up, placed in a box, or some substitute therefor, and shaken together; and such officer as may be designated by tbe court must, in bis presence, draw out tbe slips, one by one, until tbe jury is completed,” &c. Evidently, therefore, it was “the regular jurors” who were “on tbe regular juries for tbe week,” and not those who bad been summoned to compose them and excused, that were to be included in tbe fifty or more persons, from which a jury to try tbe accused was to be constituted. And even this direction, that tbe regular jurors be included in tbe list, is not founded on any idea of benefit to tbe accused, but of convenience to both tbe sheriff and citizens; which would be consulted, by having tbe jury co pposed, as largely as a due regard to tbe attainment of impartial justice would allow, of the jurors who were already in court, and held there for the transaction of its business. It could not be assumed that these persons would be any more favorably disposed toward tbe accused, than any bke number of other citizens would be. Tbe objection of prisoner’s counsel to tbe omission from tbe list served on bis client, of tbe names of those who bad been summoned to compose tbe regular juries, but were not serving on them, is, therefore, disallowed.

Tbe only other question in this cause relates to an error in writing, in the list served upon the prisoner, the name of one of the persons summoned — “Atkinson,” instead of Adldson. In respect to such a case, the statutes make express provision; and in. compliance with section 4175 of the Revised Code, the name of this person was taken out of the box, and another person summoned, whose name was substituted in its place.

The judgment of the Circuit Court must be affirmed.  