59 So. 361 | Ala. Ct. App. | 1912
The transcript in this case contains many confused and contradictory statements in its different parts, and it is difficult to arrive at a satisfactory conclusion from an examination of the judgment entry", the various different venires set out in the record,
These matters contradicting the judgment entry to the effect that but one order was made requiring 58 names to be drawn cannot be looked to for the purpose of showing reversible error, for, when the statements contained in the bill of exceptions conflict with the judgment entry shown in the record, the recitals of the judgment of the court will control and prevail over contradictory statements in the bill of exceptions. — Spraggins v. State, 139 Ala. 93, 35 South. 1000; Butler & Stevens v. Savannah Guano Co., 122 Ala. 326, 25 South. 241.
The manifest object and purpose of the statute is to afford the defendant a reasonable opportunity before being put upon his trial and required to proceed with it to examine the jury lists and copy of the charge against him and prepare for trial. The present statute requires the service to be made “forthwith.” The special jury was drawn, and the order made to serve the defendant “forthwith,” as shown by the judgment entry on February 19th, but the service was not made as shown by the return of the sheriff until the second day after the order was made, and that too on the same day the case was set for trial, aud the defendant was required to proceed with the trial almost immediately after the service was made upon him. Counsel for appellant contends that section 7840 of the Code requiring service “at least one entire day before the day set for his trial” is still in force and effect, and that the new jury law (Acts 1909, p. 305 et. seq.) does not repeal the section of the Code making such a requirement as to service.. We discussed this question generally in Welch v. State, 1 Ala. App. 144, 56 South. 11, but did not consider directly whether section 7840 of the Code was repealed by the present jury law. What we said in that case will be seen to have had reference to a defendant on bond who was evading service by secreting himself. In Welch’s Case, supra, we held that the defendant, even though evading service, should be given “a reasonable time to examine the jury lists and copy of the charge before proceeding with the trial.” In this case
The following definition and meaning of “forthwith” is given by the Century Dictionary: “(2) In law, without delay; as soon as the thing required may be done by reasonable exertion confined to that object; in rules of legal practice sometimes deemed equivalent to within 24 hours.”
Black’s Law Dictionary defines ' “forthwith” thus: “As soon as by reasonable exertion, confined to the object, a thing may be done. Thus, when a defendant is ordered to plead forthwith, he must plead within 24 hours. When a statute enacts that an act is to be done ‘forthwith,’ it means that the act is to be done within a reasonable time.” Bouvier gives practically the same meaning to the word.
In considering the true meaning to be placed upon it, .due regard must be had to the connection in which it is used, and the nature of the thing to be done. “Forthwith” may have a relative meaning and might imply a longer or shorter period according to the connection of its use and the nature of the requirement. Here it is used in a mandatory statute requiring a strict construction and has. reference to the performance by an officer of the law of an official duty upon which depends material and important rights of one accused of crime that may be punished capitally. As thus used, the word could not be taken to mean less than that the duty must be performed promptly and with all convenient dispatch, without delay. The statute containing the requirement is mandatory; the order when made under the provisions of the statute is not less so. It does not seem to us that even in'the ordinary course of business in the performance of important official duties it can be said that this highly important duty imposed by a.
The abortive attempts to serve other copies of the indictment and jury lists upon the defendant are not to be considered. Such acts were mere nullities. The record shows that the copy of the indictment and jury lists served on the defendant on the 21st of February alone met the requirements of the law, and their service alone can be relied upon. It was this list of jurors served on February. 21st from which the defendant was required to strike a jury in the trial of his case.
There are many points taken by counsel on the drawing and formation of the jury, and while- there is no indication of it in the judgment entry, it would appear from the various venires set out in the record that irregularities in these matters as a matter of fact did exist. We do not doubt but that the mistake of the court in ordering and drawing the wrong number of names could have been corrected and cured by a proper-subsequent order; but the different orders and action of the court in this respect should have been entered in the bench notes on the trial docket and incorporated'in and shown by judgment entry. A fair and orderly administration of justice in the trial of criminal cases requires that the orders entered and the action taken by the court on such orders be entered of record that the defendant may be protected in the right to review that is guaranteed to him by the Constitution and statutes, and the record should speak the truth as to the steps taken by the court in the progress of the trial. It is not necessary to treat the different questions raised by the motions to quash the venires, hoAvever, as they will not occur upon another trial.
For obvious reasons we refrain from a detailed discussion of the evidence, but make the following observations on the questions presented on the evidence .for. the guidance of the court on another trial.
Properly framed questions seeking to elicit testimony' that would tend to show a concert of action, or conspiracy, or improper influence that would have a-tendency
The charges set out in the transcript require no discussion; they may or may- not figure in another trial. They present no new question, and their application to the facts of this case raise no new or unusual condition. These charges do not contain in themselves, nor in their application, any novel features, but present no more, in varying forms, than familiar propositions of the law of homicide in the different phases so often passed upon by the Supreme Court, and most of them are “copied charges” and present only the question of whether they are covered by the given charges, in all about 100 in number.
The case must be reversed for the reasons we have given in discussing a failure to comply with the mandatory requirement of the jury law, to which seasonable objection was taken and exception reserved by the defendant.
Reversed and remanded.