62 So. 438 | Ala. Ct. App. | 1913
By an act of the Legislature approved February 21, 1901 (Acts 1911-01, p. 1854), the city court of Bessemer was established to sit at Bessemer, and, in addition to a defined law and equity jurisdiction, it was given criminal jurisdiction of all felonies and misdemeanors committed within certain named precincts of Jefferson county, to be exercised concurrently therein with the criminal court of Jefferson county, sitting at Birmingham, whose territorial jurisdiction as to all such crimes extended, not only over the precincts named, but was coincident with the limits of the entire county. It is a settled rule of law, designed to avoid conflicts between courts, that Avhen two courts have concurrent jurisdiction over a particular subject-
“Sec. 25. That in all cases hereafter where a party is arrested either on a warrant, indictment, capias or other process issued on an indictment, for an offense arising or committed by him in said district [the precincts referred to], his case shall be triable in said city court of Bessemer or in the circuit or criminal court of Jefferson county, and if said warrant or capias or other process is returnable to the criminal court of Jefferson county, and the defendant makes bond for his appearance, his case shall be removed to said city court of Bessemer and the papers shall thereupon become returnable to said city court of Bessemer and the case triable there.
“Sec. 26. That in all cases hereafter where the defendant fails or refuses at the time of his arrest to make bond for his appearance at the then present or next term of said city court, whether arrested on warrant, indictment, capias or other process, or is committed to jail by the examining magistrate in default of bond, or when surrendered by his bondsmen} for an offense committed in said district, whether felony or misdemeanor, the officer making the arrest or receiving such person shall confine him in the county jail at Birmingham, and make return of the process to the clerk of the criminal court at Birmingham, and the case shall stand for trial in the said criminal court, and in such cases where the case is pending in such city court or the process issued
Though each of these courts should always make this transfer when and under conditions as required by the statute, yet, if either court should fail to do so, and mistakenly proceed and itself try a case which should have been transferred, we are not of opinion, as here insisted, that its judgment would be void. — Ex parte Rice, 102 Ala. 671, 15 South. 450; State v. Fuller, 147 Ala. 169, 41 South. 990. At most it would be only voidable on direct attack, and only at tbe instance of a defendant who had properly raised the question in the lower court as to its jurisdiction of his person; the court, as shown, clearly having jurisdiction of the subject-matter. — Authorities supra. Neither consent nor a failure to object, it is true, can confer jurisdiction of the subject-matter, it being derived alone from the law; but, where jurisdiction of the subject-matter is conferred by law, jurisdiction of the person can be acquired by consent.- — -Authorities supra. It is settled law that a general appearance confers jurisdiction of the person; anil, if a defendant would object to jurisdiction over his
Here it appears that the defendant at the time his case was called for trial in the city court of Bessemer, where the case was pending, was under bond to appear at such court to answer the charge for which he was actually tried, but it further appeared, as said, that after giving the bond and before the case was called for trial in the Bessemer court, he had been arrected on another charge and placed in jail at Birmingham, from whence he was brought by the sheriff down to Bessemer to answer the court there on the charge for which he had given the said bond. When this case was there called for trial, on November 11th, his counsel stated to the court that the defendant was in confinement and the facts thereof, as recited, and that he had not prepared for trial for the reason that he had expected the case, under the circumstances, to be transferred to the Birmingham criminal court and there tried, where the other case against him would have to be tried. The judge announced that the prisoner would be tried at Bessemer as to the charge for which he had given bond, in which position the court Avas correct, as shown. The judge stated, however, that he Avould allow defendant until the next day to get ready for trial. The next day, November 12th, when the case Avas called, another question Avas sought to be raised. Defendant’s counsel then
Assuming that the question was properly raised in the court below, though, for reasons hereinbefore adverted to, it appears that it was not, still the action of the lower court may be sustained on another ground. As a general rule the jurisdiction of a court depends upon the state of affairs existing at the time it is invoked, and if the jurisdiction once attaches to the person and subject-matter of the litigation, the subsequent happening of events, though they are of such a character as would have prevented jurisdiction from attaching in the first instance, will not operate to oust jurisdiction already attached. — 12 Ency. Pl. & Pr. p. 171, and notes. This rule is, of course, to some extent also modified by section 26 of the act cited, in that it provides, as seen, for the transfer to the criminal court of Birmingham from the city court of Bessemer of a case pending in the latter court, and to which its jurisdiction has attached, if subsequently the defendant in the case, who is on bond, should be surrendered by his bondsmen and placed in jail; but we do not suppose that any one would
The calling of the case for trial is the first step in the trial, and was in a sense an arraignment of the defendant, which is defined to be “the calling of a person to the bar of the court to answer the matter charged against him.” — State v. Brock, 61 S. C. 141, 39 S. E. 359; State v. Weber, 22 Mo. 321; Fitzpatrick v. People, 98 Ill. 259; State v. Jackson, 82 N. C. 568. The case was passed to the next day to allow him an opportunity to prepare to support his plea of not guilty — impliedly made when the case was called for trial — implied from his failure then to plead guilty and the insistence then of his counsel that he Avas not ready for trial. We do not think that his surrender after this, and before the trial Avas actually entered upon the next day, could defeat the jurisdiction of the court.
Nor did the court commit any error in sustaining an objection to the question propounded by defendant to state’s Avitness Arthur Mallory, inquiring if Mr. Percy had not talked to him about the case. The witness had just before stated that he did not know Mr. Percy, and that neither he nor anybody else had been talking to him about the case.
It Avas entirely immaterial under the facts and issues of this case as to who was the witness’ boss; and the
Neither did the court err in refusing the affirmative charge requested by defendant (see Jim Robinson v. State, 4 Ala. App. 1, 58 South. 121) or in refusing charge 21, as it was objectionable, if for no other reason, because argumentative. ••
. We have discussed the only errors urged in brief. We find none in the record, and the judgment of conviction is affirmed.
Affirmed.