31 Ala. 376 | Ala. | 1858
Lead Opinion
— We propose, in this case, to decide no question which is not rendered necessary by the state of the record. The true bill against the defendant for murder was found by a grand jury of the county of Cherokee. At the instance of the defendant, the venue was changed to the circuit court of the county then known as Benton, but now named Calhoun. The defendant was arraigned, and pleaded not guilty, long before the change of venue was applied for and obtained. The trial was had in. Benton county, on a certified copy of the indictment; a verdict of guilty rendered, and sentence of death pronounced on the prisoner, which stands suspended to await the action of this court on questions reserved. After the verdict was rendered, and before sentence, the defendant moved in arrest of judgment, on the ground that the transcript from Cherokee did not contain the caption of the grand jury. The court withheld his judgment on said motion, and ordered a perfect transcript lo be obtained from the circuit court of Cherokee; which being obtained, and filed, the motion was overruled.
It is certainly the policy of our laws, to discourage and dispense with technicalities, as far as may be consistent with a proper regard to life and liberty. That policy, in its app|ication to grand juries, is expressly declared in sections 3470 and 3471 of the Code. True, those sections do not, in terms, bear on the question we are considering; but they, to some extent, indicate a policy to be pursued by us.
In this case, the record, as it now appears in the transcript, shows that the grand jury was properly organized' in Cherokee county; that they found and returned into the court the indictment, on a copy of which the defendant in this case was tried; that by a regular order made in the Cherokee circuit court, at the instance of defendant, the venue was changed to Benton, and the defendant there, without objection, went to trial on the copy of the indictment, so certified from Cherokee. He was convicted, and then, for the first time, raised the question of the sufficiency of the transcript. The only defect pointed out was the omission from it of the caption of the grand jury-
The writer of this opinion thinks the following view is a complete answer to this objection, and Judge Walker concurs in this opinion :
The question presented is, had the circuit court of Benton county legal jurisdiction of this case? We maintain that, when the circuit court of Cherokee county, at the instance of the prisoner, made the order for the change of venue, and adjourned the court, without revoking or qualifying that order, all jurisdiction over the prisoner was out of that court, and the same vested eo instanti in the circuit court of Benton county. The jurisdiction was not, and could not be, in abeyance. If this be not so, a prisoner who is out on bail, and who obtains a change
In saying this, we do not wish to be understood as asserting, that the court to which the venue is changed could rightfully try the prisoner in the absence of all evidence of the charge against him. The court in which the indictment was found had no such authority. The indictment is part of the record, and can exist only in writing. ¥e hold, however, that when the transcript, as in this case, contains all those parts of the record on which questions can be raised “while the trial is in progress” — the parts which bear on the question of the guilt or innocence of the prisoner, as contradistinguished from the regular organization of the body by which the grand inquest was held — if in such case, the prisoner go to trial without raising the objection, this mere evidence of regularity may be supplied at any time before final judgment in-the cause, if the same be done before the adjournment of the term at which the conviction is had. The record being in fieri, and under the control of the court during the entire term, its completion at anytime before the final adjournment relates back, and heals previous informalities. — Franklin v. The State, 28 Ala. 9. See, also, State v. Matthews, 9 Por. 370; State v. Greenwood, 5 ib. 474.
Concurrence Opinion
concurs in the result attained by the majority of the court on this question. The grounds of his opinion are, that by going to trial on the imperfect transcript, without objection, the prisoner waived' all right to object in arrest of judgment, on account of the alleged imperfection in the transcript. He thinks, that if, at the time the motion was made in arrest of judgment, there existed, in the imperfection of the transcript then on file, any cause for arresting the judgment, such imperfection could not afterwards be supplied by the production of a more complete record from Cherokee. He cites, in support of his position, Doty v. The State, 6 Blackf. 529 ; Laforte v. The State, 6 Missouri, 208 ; Greenwood’s case,
Judge Walker and myself • express no opinion on the simple question of waiver; but hold, that if, at the time the motion was made, the imperfection in the transcript was such as to furnish matter for arrest of the judgment, the perfection of the transcript during the term justified the court in overruling the motion.
The judgment of the circuit court is affirmed, and the sentence of the law must be executed.
