
    Smith v. The State.
    
      Murder.
    
    (Decided April 9, 1908.
    
      46 South. 236.)
    
      Jury; Capital Cases; Peremptory Challenge. — The peremptory challenges of jurors allowed hy section 5008 are in addition to those allowed by section 5015, and it is error to refuse to permit a defendant all the challenges allowed by both sections.
    Appeal from Colbert Circuit Court.
    Heard before Hon. C. P. Almon.
    Will Smith was convicted of murder, and he appeals,
    Reversed and remanded.
    The defendant was indicted for murder, and bis punishment fixed at imprisonment in tbe penitentiary for life. When tbe drawing of tbe jury was commenced it was ascertained that- there was a mistake in tbe name of J. W. Allen, one of tbe special veniremen, and be was discarded, and tbe sheriff directed to summons another juror. The sheriff summoned W. T. Norman, who was found to be qualified and accepted by tbe state, but peremptorily challenged by tbe defendant. It was ascertained that there was a mistake in tbe name, of one Carter, and M. L. Counts was summoned in bis stead. He was accepted by tbe state and challenged by tbe defendant. At tbe time of tbe substitution of Norman and Counts for tbe other two jurors on tbe special venire tbe defendant bad bad 20 challenges of a peremptory nature. Tbe court then drew tbe names of Belue, one of tbe special veniremen specially drawn, and tbe defendant offered to challenge him peremptorily after be bad been accepted by tbe state. Tbe court declined to permit him to do this, for tbe reason that be bad bad all tbe challenges allowed him by law. There are other errors assigned; but, as they are not noticed in tbe opinion, they are not set out.
    Almon & Andrews, for appellant. Counsel discuss assignments of error but without citation of authority.
    Alexander M. Garber, Attorney-General, for tbe State.
   DOWDELL, J.

The jurors Allen and Norman were substituted jurors under tbe provisions of section 5007 of tbe Criminal Code of 1896. Tbe challenges of these jurors by tbe defendant were not chargeable to tbe defendant in estimating tbe 21 challenges to which be was entitled by section 5015. Section 5008 provides as follows : “Tbe defendant is not entitled to a list of tbe persons summoned under tbe provisions of tbe last section [section 5007], but may peremptorily challenge any of them, if drawn on tbe jury for bis trial, in addition to tbe other peremptory challenges allowed by law.” By section 5015 tbe defendant in a capital case is allowed 21 peremptory challenges. We see no escape from the holding that the peremptory challenges allowed by section 5008 are in addition to those given in section 5015, for so the law is plainly written. Excluding from the estimate the 2 challenges of Allen and Norman, the defendant had only 20 challenges when the juror Belue was drawn. The court below refused the defendant the right of challenge of this juror. In this the court was in error, for which error the judgment must be reversed.

Reversed and remanded.

Tyson, C. J., and Anderson and McCLELLAN, JJ., concur.  