Parker v. State , 102 Ala. 128 ( 1893 )

COLEMAN, J.

The same question comes before us in this case, as that considered and adjudicated in the case of Ezell v. The State, ante p. 101. In that case it was held by a majority of the court, that section 3 of the special act for Montgomery county, (A.cts 1886-87, p. 190), repealed sub-division 1 of section 4331 of the Criminal Code, which declared it to be a good ground of challenge by either party “That the person has not been a resident householder or freeholder of the county for the last preceding year.” We are of opinion that the decision in that case was erroneous. We adopt the conclusion reached in the dissenting opinion filed in the Ezell case, and hold that the court erred in refusing to allow the juror to be challenged.

The decision in the case of Ezell v. The State is overruled, and the dissenting opinion filed in that case, adopted as the opinion of the court in this case, upon the question under consideration.

It was the duty of the sheriff to summon the juror Parks. The statute is mandatory. The court alone can pass upon the qualification of a juror, after his name has been drawn from the jury box.

Reversed and remanded.

McCleulaN and Habamon, JJ., dissenting.