
    5 So.2d 95
    WASHINGTON v. STATE.
    6 Div. 877.
    Supreme Court of Alabama.
    Dec. 11, 1941.
    Arthur D. Shores, of Birmingham, for appellant.
    Thos. S. Lawson, Atty. Gen., for the State.
   BOULDIN, Justice.

Everette Washington, appellant, was indicted, tried and convicted óf the crime of rape, and his punishment fixed at death.

The record on the main trial is in all things regular; the evidence fully sustained the verdict.

The only ruling adverse to defendant was the denial of a motion for a new trial upon the ground that the jurors impanelled for the trial of the case, and who served as such jurors, were not sworn as jurors for the trial of the issue joined in this case.

Without question a jury "impanelled and sworn according to law” is a primary essential to a trial and conviction of crime by the verdict of a jury. The minutes must affirmatively show such fact; else the judgment of conviction will be reversed on appeal. Hines v. State, 238 Ala. 575, 192 So. 423.

The minute entry did show such facts. The motion was to vacate such judgment, and grant a new trial upon the ground that in fact the jurors were not sworn in.

The trial court heard the motion on oral testimony. The attorney for defendant, the solicitor, the deputy clerk, the court reporter, the bailiff, and all the jurors were examined as witnesses. Finally the trial judge makes a full statement, touching his own recollection, and his firm conviction that the oath was administered by the deputy clerk after the jury had been selected and assembled in the jury box.

A detailed discussion of the evidence, and the inferences deducible therefrom, would serve no good purpose.

Upon careful consideration we are of opinion the ruling of the trial judge should be and is sustained.

. The judgment of conviction and sentence pronounced thereon are affirmed.

The date for the execution of the death sentence having passed, it is ordered that Friday, the 13th day of February, 1942, be and is hereby fixed as the time for the execution of such sentence in the manner provided by law.

Affirmed.

All the Justices concur.

KNIGHT, J., not sitting.  