Pollitt v. State ( 1993 )

TAYLOR, Judge

(dissenting).

I dissent from the majority’s holding in its unpublished memorandum that the issue of whether the trial court failed to swear in the jury was waived because it was not first presented to the trial court. This court has on many occasions stated that the record must affirmatively show that the jury has been sworn. Cole v. State, 580 So.2d 85 (Ala.Cr.App.1991); Tarver v. State, 500 So.2d 1232 (Ala.Cr.App.), aff'd, 500 So.2d 1256 (Ala.1986); Murphy v. State, 403 So.2d 314 (Ala.Cr.App.), cert denied, 403 So.2d 316 (1981).