Braden v. StateBraden v. State
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Appeal from conviction of second degree burglary: breaking and entering with intent, etc., the Service Department Building of Johnson Chevrolet, Incorporated. Sentence, ten years in the penitentiary. Code 1940, T. 14, § 86.
I.
The night watchman seeing three men in the building, among then Braden, captured them and called the police. A short time lаter some tools and pistols were found in a booth where the watchman first cornered the trio.
II.
Some attempt appears in the record to hаve been made to claim error because of the absence of a preliminary hearing. See Code 1940, T. 15, § 128 et seq.
Preliminary examination is laid •down as a mode of determining the regularity of detention bеfore (i. e. without) indictment. See Ex parte Thaggard, 42 Ala.App. 229, 159 So.2d 813, affirmed 276 Ala. 117, 159 So.2d 820. However, if the magistrate holds no preliminary examinаtion, a prisoner’s proper praeciрe for a writ is one for mandamus, not for habeas corpus. Ex parte Simpson, 3 Ala.App. 222, 57 So. 518; State v. Humphrey, 125 Ala. 110, 27 So. 969; State v. Richburg, 42 Ala.App. 495, 168 So.2d 628(3).
Upon indictment by a properly chosen grand jury, then a determination of thеre being probable cause has been madе so as to hold the accused to answer to а petty jury. Ex parte United States, 287 U.S. 241, 53 S.Ct. 129, 77 L.Ed. 283.
In United States ex rel. Hughes v. Gault, 271 U.S. 142, 46 S.Ct. 459, 460, 70 L.Ed. 875, we find per Holmes, J.:
“The Constitution does not require any preliminary hearing before a person charged with a crime against the United States is brought into the Court having jurisdiction of the charge. There hе may deny the jurisdiction of the Court as he may deny his guilt, and thе Constitution is satisfied by his right to contest it there. * * * ”
A preliminary hеaring as a means of pretrial discovery has recently received much attention in legal writings. Traynоr, Ground Lost and Found in Criminal Discovery, 39 N.Y.U.L.Rev. 228; Symposium, 33 F.R.D. 47; Runge, Texаs Criminal Discovery, 47 Texas L.Rev. 1182; McGee, Ala.Crim. Practiсe, (2d Ed.) p. 52, f. n. 4.
Had the examining magistrate not taken deрositions of the accusing witnesses, such a deficiеncy would have only been properly brought out by а subpoena duces tecum. Such a failure might then have served as a predicate for a bystandеr’s testimony. Here no predicate was laid to put the matter before the circuit judge on trial of thе indictment.
We cannot perceive (becаuse of the alleged lack of such written depositions) any breach of Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 on the record befоre us. Beyond this, we are not called on to decide.
III.
The admission of testimony regarding the finding of pistols, tools and a spent cartridge at the scene some time after the capture of Braden and his сompanions was not error. Objects at the scеne are generally relevant and remotenеss in time from the res gestae is an objection going tо weight and not legality. Smitherman v. State, 33 Ala.App. 316, 33 So.2d 396; Busbee v. State, 36 Ala.App. 701, 63 So.2d 290(3); West v. State, 37 Ala.App. 125, 65 So.2d 203; Petty v. State, 40 Ala.App. 151, 110 So.2d 319; Dorch v. State, 40 Ala.App. 475, 115 So.2d 287; Pitts v. State, 40 Ala.App. 702, 122 So.2d 542; Douglas v. State, 42 Ala.App. 314, 163 So.2d 477(23); McElroy, Evidence, (2d Ed.) § 21.01(3).
*188We have reviewed this record under Code 1940, T. 15, § 389 and consider the judgment below should be
Affirmed.