¶1This is an appeal from a judgment of conviction on a prosecution for rape. This offense is a capital crime, as the defendant is subject to the punishment of death. — (Rev. Code, § 3661; 1 Bouv. L. Dict., word, Capital Crime, p. 240.) The rule of law, fixing the rights of the accused in such a case, is very clearly laid down in the Code. It is this : “ If the defendant is indicted for a capital offense, and is in actual confinement, a copy of the indictment, and a list of the jurors summoned for his trial, including the regular jury, must be delivered to him at least one entire day before the day appointed for his trial; and if he is unable to employ counsel, the court' must appoint counsel for him, not exceeding two, who must be allowed access to him at all reasonable hours; and if he is not in actual custody, and has counsel, whose names are so entered on the docket, such counsel must, on application, be furnished with a copy of the indictment and a list of ,the jury. ” — (Rev. Code, § 4171.) This is a plain and peremptory command, and as such it should be enforced by the court. It confers rights as absolute as the right to be tried by a jury, and it should appear in the record of the proceedings in the eourt below, that they have been equally well guarded. The motion in arrest of judgment is made a part of the record in this case, as well as the action of the court thereon. From this it appears that the defendant was in actual confinement at the time of summoning the jury, and at the time of the trial. When this is the case, the record should show affirmatively that a list of the jurors and a copy of the indictment had been legally delivered to the defendant. If it fads in this, it is error. Robertson v. The State, 43 Ala. Rep, 325. In such a case as this, this court looks to the whole record, if this shows error there will be a reversal. — (Revised Code, § 4314.) Strictly speaking, a motion in arrest of judgment can only be founded upon matter of record. The court can not hear extrinsic evidence on such a motion.— Williamson & Daniel v. Br. Bk. Montgomery, 3 Ala. 504. Then the court below did not err in denying the motion in *68arrest, but tbe proceedings in tbe court below, for tbe error above pointed out there, must be reversed. Tbe jury, after being impanneled and sworn, should not be permitted to separate and “ mix with tbe crowd, who were in attendance on tbe court,” without tbe consent of tbe defendant. But such a departure from tbe proper practice is not a matter for arrest of judgment, unless, perhaps, it •is made a part of tbe record by bill of exceptions, but is grounds for a new trial.--(Brister v. The State, 26 Ala. 107; Franklin v. The State, 29 Ala. 14.)
¶2For tbe error first above pointed out, tbe judgment of conviction in tbe court below is reversed and tbe cause is remanded for a new trial, and tbe defendant, tbe said Alexander Morgan, who is tbe appellant in this court, will be held in custody until discharged by due course of law.