
    Gray v. The State.
    
      Indictment for Murder.
    
    1. Summoning non-residents as special jurors in capital ease. — If, through inadvertence, non-residents are summoned as sjiecial jurors in a capital case, this is good ground of challenge for cause, but not a good ground for quashing the venire; and if the rule be different, where such non-residents are summoned, not through inadvertence, but with knowledge by the officer of their non-residence, the fact of such knowledge must be affirmatively shown to the court on a motion to quash.
    2. Amendment of sheriff's return on venire, showing service on prisoner. — The sheriff’s return on the venire, in a capital case, not showing that a copy was served on the prisoner one entire day before the day appointed for the trial (Rev. Code, § 4171), the defect may be supplied by amendment, when amotion, is made to quash the venire on account of it.
    3. Sentence and judgment of death. — To sustain a sentence and judgment of death, the record must affirmatively show that it was the act of the court, pronouncing the sentence and judgment of the law. A recital in these words: “The defendant, being asked by the court if he had any thing to say why the sentence of the law should not now be pronounced upon him, said nothing; whereupon, the court sentenced the defendant to be hanged by the neck until he is dead,” is not sufficient.
    Erom tbe Circuit Court of Cboctaw.
    Tried before the TIou, Luther E, Saiitii.
    
      The defendant in this case, John B. Gray, was indicted for the murder of Edward H. Ward; was convicted, and sentenced to death. On his trial, he reserved a bill of exceptions to several rulings of the court, which it is not necessary to state in full, since the opinion of this court shows the rulings deemed material. The judgment of the court, as set out in the record, is in these words: “ On this day, November 10, 1876, came the solicitor for the State, and also came the defendant in person, in the custody of the sheriff, and also by his counsel; and the defendant being asked by the court if he had any thing to say why the sentence of the law should not-now be pronounced upon him, said nothing; whereupon, the court sentenced the defendant to be hanged by the neck until he is dead.” The judgment of the court, and the several rulings to which exceptions were reserved, are now relied on as error.
    Thomas Oobbs, for the defendant,
    cited 2 Cooley’s Blackstone, 395, § 396; Bouv.Law Die., tit. Judgment, p. 636; The King v. Kenworthy, 1 Barn. & Cress. 711; Baker v. The Stale, 3 Pike, Ark. 491; Knotoles v. The State, 2 Boot, Conn. 282; State v. Huber, 8 Kansas, 451; Benedict v. The 8 tale, 12 Wisconsin, 316.
    Jiro. W. A. Sanford, Attorney-General, for the State.
   BRICKELL, C. J. —

The prisoner moved to quash the venire, on two grounds : first, that it contained the names of two persons summoned as special jurors; one of whom was known by the sheriff, when he was summoned, to reside without the State, in the State of Mississippi, and the other not to have resided in the county for the term of twelve months. In Hall v. State (40 Ala. 698), it was decided, if any of the special jurors, summoned for the trial of a capital case, were incompetent because of non-residence, the income potency was ground of challenge for cause, at the instance-of the accused or the State ; but summoning them from inadvertence did not give the defendant a right, beyond the control of the discretion of the court, to demand that the entire list should be set aside. If the fact that incompetent persons are not summoned through inadvertence, but are summoned by the sheriff with a knowledge of their incompetency, makes a difference, the sheriff’s knowledge of the incompetency must be shown by evidence. It can not be assumed from its averment ; and no evidence of it having been offered, the court was not in error in overruling this ground of the motion.

The second ground of the motion was, that the return of tbe sheriff did not show a list of tbe jurors was served on tbe prisoner one entire day before tbe day appointed for trial. Tbis defect was cured by an amendment of tbe return, made by leave of tbe court. Tbe amendment was properly allowed at any time during tbe term. Tbe proceedings were in fieri, and under tbe control of the court; and it was its duty to see that tbe returns of its ministerial officers were made in proper form, and to speak tbe truth.

Tbe remaining exceptions have been carefully considered, and we can not sustain any one of them. It would serve no good purpose to extend tbis opinion by discussing them.

The statute imposes on tbe jury trying an indictment for murder, if they find tbe prisoner guilty, to state specially in their verdict tbe degree of bis guilt — whether it is murder in tbe first or second degree. — R. C. § 3657. If they convict of murder in tbe first degree, they must affix tbe punishment — either im[Drisonment in tbe penitentiary for life, or death. — R. C. § 3654. If tbe punishment of death is affixed, tbe duty of tbe court, nothing being said by tbe prisoner sufficient to bar the sentence, is to direct that be be hanged by tbe neck until be is dead, on a day appointed, not less than four, nor more than eight weeks from tbe sentence. Tbe sentence is to be executed by tbe proper executive officer of tbe law, who is tbe sheriff, or bis deputy, or tbe officer acting in bis place. — R. C. §§ 3917-18. To support tbe sentence, tbe record must disclose an observance of tbe statute. It must appear affirmatively, as tbe act of tbe court, pronouncing tbe sentence of tbe law, that the defendant was adjudged to death. Tbe sentence is not the act of tbe court: it is the judgment of tbe law tbe court is commanded to pronounce. At common law, tbe record of it commenced, “It is therefore considered by tbe court;” and these words were accepted from long use, as peculiarly significant and expressive that tbe succeeding order or judgment was not tbe sentence of tbe judge, but of tbe law. — Freeman on Judgments, §46. We do not affirm that other words, substantially expressing tbe same idea, will not be sufficient; but there is safety in observing ancient forms. Tbe material defect in tbe record is, not the omission of these particular words, but of any words accurately expressing tbe idea they are intended to convey. Tbe clerk recites: “ WhereupQn, tbe court sentenced tbe defendant to be banged by tbe neck until be is dead.” Tbis is tbe recitation by tbe clerk of what tbe court did — not tbe consideration and expression by tbe court of tbe sentence of tbe law. It imports that tbe sentence was tbe act, tbe judgment of tbe court; and not tbe act, tbe judgment of tbe law — expressing tbe idea which it is intended shall be excluded. We are unwilling, in a case of this character, to countenance such a gross departure from established forms; and to recognize, as the solemn sentence of the law, that which, strictly construed, is the mere memorandum of a ministerial officer, narrative of, but not contemporaneous with, the transaction to which it refers. — Benedict v. State, 12 Wisc. 313; Peglow v. State, Ib. 534; King v. Kenworthy, 1 Barn. & Cress. 711.

The record not disclosing the court has pronounced sentence, the cause is remanded to the Circuit Court, with directions that it proceed at its next term, if the defendant has nothing to say sufficient to bar or preclude, to pronounce the sentence of the law, on the verdict rendered.  