¶1(dissenting).
¶2In Part I of its unpublished memorandum, the majority holds that the appellant’s allegation that the jury hearing his case was not sworn was without merit because the allegation was speculative and presented no basis in law or fact. This court, however, 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); Traylor v. State, 466 So.2d 185 (Ala.Cr.App.1985); Murphy v. State, 403 So.2d 314 (Ala.Cr.App.), cert. denied, 403 So.2d 316 (Ala.1981).
¶3I would remand this cause to the Circuit Court for Jefferson County so that a hearing could be held on this issue. Therefore, I must dissent. •