The opinion
JOHNSON, Judge
(concurring specially):
It is obvious from reading the record that here the trial judge, after reading the appellant’s motion to quash, in his long prevailing and admirable policy of properly keeping the record, stated as follows:
“THE COURT: Mr. Hancock, this is for the record.
“The facts as stated in the motion are substantially correct as to what the Court told the jury in another case last week before the entire jury panel with the other jury in the audience, but the Court is of the opinion that the case as cited by the Defendant relative to instructing a specific jury on matters relative to parole are not applicable to this situation and the motion to quash the venire is overruled, and the Defendant excepts.
“MR. PATTON: Thank you.”
In the case of Lawley v. State, 264 Ala. 283 , 87 So.2d 433 , citing Oliver v. State, 232 Ala. 5 , 166 So. 615 ; the following is stated:
“ ‘The test of vitiating influence upon a jury authorizing a new trial is not whether it did influence the jury to act without the evidence, but whether it might have unlawfully influenced the jury in the verdict returned, as to its nature, character, or degree, or the amount and extent of the punishment fixed by the jury within the statute. The authorities on this subject are collected in Roan v. State, 225 Ala. 428, 435 , 143 So. 454 ; Leith v. State, 206 Ala. 439, 443, 444 , 90 So. 687 ; Lakey v. State, 206 Ala. 180, 182 , 89 So. 605 .’ ”
I am, therefore, of the opinion that here the remarks of the trial judge in overruling the motion of appellant to quash the venire, which was doubtlessly made by the court in a commendable attempt to establish and preserve a true and correct record of *82 preceding events, were contrary to the principles of law laid down in Lawley, supra, and I agree must work a reversal of this case.
I quote in part from the majority opinion in which reference is made to the statement made by the trial court as follows:
“The statement here admits of allowing the jury to escape from the rigor of their legal duty by 'passing the buck’ to the Pardon and Parole Board.”
Although I do not contend that either the distinguished writer or his learned colleague in this majority opinion was motivated by any intentional impropriety of purpose in making the foregoing statement, after considering the full context thereof, I feel that it is very possible that it could be construed by some readers to infer that some of the jurors of Limestone County might violate the solemn oath to which they subscribed governing their duties as jurors — a part of which is in substance, * * * to well and truly try all issues or cases submitted to them for decision and a true verdict render according to the law and evidence —by departing therefrom and “ * * * 'passing the buck’ to the Pardon and Parole Board”. I strongly dissent from this portion of the majority opinion.
It is serious indeed to reflect by any language that a sworn juror would violate this oath, which within itself is a creed of integrity and a charge, by intimation or illusion to the probability that they would forsake their sworn duty. A suggestion of “passing the buck” is tantamount to saying that these jurors are morally irresponsible and would violate their solemn sworn duty by refusing to adhere to the requisites of their oath.
This statement was totally and wholly unnecessary by the writer of the majority opinion of this court. The Lawley, supra, opinion written by Livingston, C. J. of the Supreme Court of Alabama is sound and here needs no comment or reasoning in the majority opinion to establish its validity or propriety.
As one who worked with the jurymen of Limestone County, as District Attorney, for nigh onto three decades, I was in a position to regularly observe the caliber of the men constituting the jury venire of this great County. I found them to be men of unimpeachable courage, integrity and intelligence and observed their decisions as jurymen.
I would now be untrue to the impulse that dwells within me were I, with such knowledge of the jurors in mind, permit this portion of the majority opinion to be perpetuated in the archives of this court without dissenting to this portion thereof.
The late Josiah Gilbert Holland, in emphasizing his deep yearning for integrity in government, penned the following, which is a part of his semi-sacred and immortal petition:
“God give us men! A time like this demands
Strong minds, great hearts, true faith and ready hands ;
Men whom the lust of office does not kill;
Men whom the spoils of office cannot buy;
Men who possess opinions and a will;
Men who have honor; men who will not lie.”
It is my opinion that the sterling and courageous qualities found in and manifested by the veniremen from Limestone County in the performance of their duties was a living answer to this prayer,