Couch v. State , 63 Ala. 163 ( 1879 )

MANNING, J.

In this case, the persons summoned as grand jurors having, by excuses allowed, been reduced below the number fifteen, the judge, instead of having an order entered, “ commanding the sheriff to summon, from the qualified citizens of the county, twice the number of persons required to complete the grand jury,” “ ordered the sheriff to summon from the by-standers five talesmen from whom to select two more jurors,” &c. The case is thus brought within the decision made in Finley v. The State (61 Ala. 201), according to which, the grand jury was not lawfully constituted, and the indictment it preferred must be quashed.

2< There was no error in ruling out the depositions taken for defendant. It is in eases pending in court, not examinations before committing magistrates, that the deposition must be taken, which the law allows to be read as evidence on the trial.

Eor the error above indicated, the judgment must be reversed, and the cause remanded. Let the defendant remain in custody, until discharged by due course of law.