Dunn v. State

60 Ala. 35 | Ala. | 1877

BRICKELL, C. J.

The order removing the trial to the Circuit Court of Walker county, having been made and entered of record, by the Circuit Court of Tuskaloosa county, in which the indictment was found, the jurisdiction of the latter court was exhausted ; and the jurisdiction of the former attached, when a transcript of the record of the proceedings in the Tuskaloosa Circuit Court was made and certified in conformity to the statute, and delivered to the clerk of the Circuit Court of Walker.- — Code of 1876, §§4914-16. The subsequent destruction of the transcript, by the burning of the court-house, did not affect the jurisdiction of the Circuit Court of Walker. The transcript had become a record of that court, and the court had power to substitute it, upon proper evidence of its destruction and contents.— Bradford v. State, 54 Ala. 230; 1 Bish. Cr. Pr. §§ 1213-14. It was the duty of the clerk of the Circuit Court of Tuskaloosa, on the application of the solicitor, or of any person applying for the same, to make out and deliver a correct transcript, properly certified, of the proceedings had in the cause while.it remained in that court, appearing of record, or of papers found on file pertaining to the cause. This transcript, whether certified as the original transcript was, or simply certified, in general terms, to be a full, true, and correct copy of the record, and of the papers on file, became proper evidence of the contents of the original transcript. If its truth was not successfully controverted, the court could, on motion, have ordered its substitution, as and for the original; or, without making the order, could have accepted it on the trial, as evidence of the contents of the original transcript. Rights are not lost — suits in civil causes, and prosecutions in criminal causes, are not terminated — by the loss or destruction of records, or of papers pertaining to the files, while the cause is in fieri. The court has the power, and it is its duty, to supply them, on proper evidence of their contents.

The Circuit Court ordered, on the presentation of transcripts from the Circuit Court of Tuskaloosa, certified by the clerk, under the seal of the court, to be full and complete transcripts of all the papers and proceedings on file and of record in the cause while in that court, these transcripts containing the organization of the grand jury, the indictments thereon, all the entries relating thereto, should be filed — in other words, should be substituted — for the original transcript, which had been destroyed. It was not necessary the court should have obtained these transcripts by any order, or by a certiorari to the clerk of the Circuit Court of Tuskaloosa county. Such an order, or writ, is necessary, only when it is necessary to correct mistakes, or supply omissions, in records already certified to, and of file in the court. Code of 1876, § 4916. The record, mistakes or omissions in which could have been supplied or corrected, had been lost. The power the court was exercising, was not the power to correct mistakes, or supply omissions. It was simply the power to receive legal evidence of the contents of the transcript which had been destroyed. The duty of the court was to require the best evidence of the contents of that transcript the State could produce. A reproduction from the records and files of the Circuit Court of Tuskaloosa, whence the destroyed transcript came, was the best and highest evidence of its contents. — 1 Whart. Ev. §§ 135-6. The reproduced transcript, containing everything which the original could have properly contained, and being certified to be full and complete, in the absence of all impeachment of its verity, was properly received, and substituted for the original.

We have carefully examined the record, and there is no error which authorizes a reversal of the judgment of conviction.

Affirmed.