The opinion
On Rehearing.
In his application for rehearing appellant’s counsel asserts that our statement that “The appellant moved to quash the venire, on the grounds that four of the regular jurors, whose names appear on the copy of the venire served on the appellant, had not been summoned for jury duty by the Sheriff”, does not correctly reflect the motion.
The motion to quash was based on four grounds; the first being as follows: “1. That for the venire that was served upon the defendant Clyde Nolen is not a venire as required by law, because the copy served upon him was not a true venire to try this case because this venire contained the name of Paul Davis as a regular juror, and Paul Davis was not summoned.”
The remaining three grounds are substantially identical with the first ground, except that a different regular juror is named in each respective ground.
We think our statement as to the motion was correct. Counsel insists however that the full verbiage of the motion brings it squarely within the doctrine of Carwile v. State, 148 Ala. 576 , 39 So. 220 , and that error therefore resulted in denial of the motion to quash.
We do not think there is merit in appellant’s contention. There was not shown to have been an error or irregularity in any order of the court pertaining to the venire, or the manner of drawing it. The venire was therefore lawful in every respect. The Sheriff was unable to* summon four of the regular jurors, because they could not be found in Cherokee County, and such nonservice was not shown on the copy of the special venire served on the defendant. Section 67, Title 30, Code of Alabama 1940, specifically provides that if the Sheriff fails to summon any of the jurors drawn such defect shall not be sufficient to quash the venire.
We might also note that the Carwile case relied on by appellant’s counsel was decided on the basis of the statutes at that time in force. That the force and effect of these statutes has been altered by subsequent enactments is clearly pointed out in Irwin v. State, supra.
The record shows that during the cross examination of the prosecutrix the following occurred:
“Q. When it was first set, the Grand Jury in Cherokee County, you did not attend?
“Mr. Talley: We object.
“The Court: Sustained.
“Mr. Reed: We except..
“Q. The first time you ever called yourself Lola Gilmore so far as anybody over in this county knew was the 16 day of September the second day the Grand Jury met here to consider this case. A. Yes.”
Counsel argues that the action of the court in sustaining the objection as above set out should cause a reversal of this cause.
There was no offer of expected proof stated by counsel for the court’s informa *255 tion, nor was there any proof that the prosecutrix had been summoned 'before the Grand Jury on the first day. It is shown by part of the'above extract from the record that the prosecutrix was before the Grand Jury on the second day of its meeting. Certainly she appeared as an unhesitant witness in the trial below. The bare question as framed, and to which objection was sustained, does not contain any inference of reluctance on the part of the prosecutrix to appear as a witness 'before the grand jury. Certainly is this true in the absence of any showing that she was summoned to appear on the first day of the meeting of that body. No- error therefore resulted from the court’s action in this premise.
It is further urged by counsel that the lower court erred in refusing to permit the prosecutrix to be cross examined relative to her spending two or more nights “away from her home with her paramour, James Ward, immediately following the alleged offense, registering and holding herself out as his wife.”
The prosecutrix testified that the night of the alleged offense she spent in the Dixie Hotel, in Piedmont; that there was only one bed in the room, and that James Ward had sat up in the room looking after her. The record then shows the following:
“Q. The next morning you went to another hotel in Piedmont; you moved out of there ? A. I left there.
“Mr. Talley: We object.
“The Court: You are carrying it too far.
“Mr. Reed: I was fixing to ask her another question.
“Q. At this other hotel you held yourself out as 'being the • wife of James A. Ward? A. I did not go to another hotel.”
Pretermitting any consideration as to the propriety of the court’s statement that counsel was carrying the examination too far, no exception was reserved to the court’s statement, and other than as shown above no further effort was made to develop this line of testimony. We find nothing in the above incident warranting or permitting our review.
Application denied.