Walker v. State , 171 Ala. 1 ( 1911 )

SIMPSON, J.

The appellants were .convicted of the crime ot robbery, ¿nd the .record''shows that ’50 jurors were drawn for the special venire,..from which the.jury that tried defendants was selected, ' under the special act. of. February 26,-19.07, which has-.,been by this court held to bé uhponsti'tuti.onál.—Crain v. State, 166 Ala. 1, 52 South. 31, 33.

THe writer is of the opinion that section 6264 of the Code of 1907, has received too narrow a construction, and that, in this case, since the defendants merely had a large number to select from, and obtained a jury with which they were satisfied, the court should say that it is satisfied that no injury has resulted to the defendants; the limitation of the number on the venire being rather a matter of economy than an expression of the idea that a defendant could select a more satisfactory jury out of 25 men than out of 50. Justices McClellan and Somerville agree with the writer, but the majority of the court hold that the case just cited is sound law.

It results that the jury which convicted the defendants was unauthorized by law, and the conviction and sentence were illegal.

The judgment of the court is reversed, and the cause remanded.

D'owdell, C. J., and Mayfield, Anderson, and Sayre, JJ., concur. Simpson, McClellan, and Somerville, JJ., dissent.