¶1(concurring specially).
¶2I concur in the opinion prepared for this Court by the Honorable William I. Byrd, Circuit Judge. In addition to the authorities cited in the Court’s opinion, as prepared, I felt it appropriate to cite Spears v. State, Ala.Cr.App., 329 So.2d 579, cert. den., Ala., 329 So.2d 582; and Proctor v. State, Ala.Cr.App., 331 So.2d 828, in further support of our holding with reference to the use of a “special venire.”
¶3I also wish to cite Scott v. State, Ala.Cr.App., 331 So.2d 759, cert den., Ala., 331 So.2d 762, also in support of the above point, and also as to its holding with reference to the excusal of prospective jurors in “capital” cases in the absence of the appellant.
¶4Though the issue of being arraigned and served with a copy of the indictment one day before trial was here timely raised, this point has also been deemed not to be a prejudicial error where the punishment is less than “capital.” See Williams v. State, 51 Ala.App. 694, 288 So.2d 753, citing Hubbard v. State, 290 Ala. 118, 274 So.2d 298.
¶5The possible effect of Act No. 213, Acts of Alabama 1975 (Volume 1, page 701), wherein the Legislature of Alabama has reenacted the death penalty, under certain limited circumstances, is not before this Court in this cause.
¶6BOOKOUT, J., and SIMMONS, Supernumerary Circuit Judge, concur in the above.