26 Ala. 52 | Ala. | 1855
— Section 3613 of the Code provides, that, “ when an order removing the trial in á criminal case is made, the clerk must make out a transcript of the caption of the grand jury, the indictment, with the endorsement thereon, and all entries relating thereto, the undertakings or recognizances of the defendant, and all the orders and judgments upon the same, the order for the removal of the trial, and all the other orders in the cause, — attach his certificate thereto, and forward it, sealed up, by a special messenger, or deliver such transcript and certificate to the clerk of the court of the county to which the trial is ordered to be removed.”
The clerk is a mere ministerial officer, and his duty as such, in the cases provided for by the section of the Code above quoted, is clearly prescribed by that section. No court can relieve him from the performance of that duty, thus prescribed by statute. The rules and practice of the court, established by the court itself, may sometimes be made to yield to circumstances, to promote the ends of justice.” Not so as to a statute ; it is unbending, requiring implicit obedience, as well from the court” as from its suitors and its clerk. The court possesses no dispensing power as to a statute.—Jackson v. Wiseburn, 5 Wend. R. 136; Caldwell v. Mayor, 9 Paige’s R. 572.
It follows from what we have above said, that the prisoner can obtain no benefit here from the fact, that in the order for the removal of the trial, the court directed the clerk to trans
Whether the order of the Circuit Court of Wilcox, directing its clerk to transmit “ the original papers, and copies of all orders and entries made in said cause”, is proper or improper, so far as it relates to “ the original papers”, we need not decide ; for, conceding it to be improper to that extent, it certainly furnishes no ground for the reversal of the judgment of the Circuit Court of Balias. It could not, and did not, disable the clerk of the Circuit Court of Wilcox from performing the duty prescribed to him by section 3613 of the Code : that clerk might have sent such a transcript as was required by that section, and also “ the original papers.”
It is evident, that there has been no discontinuance of this case, unless the omission of the clerk of the Circuit Court of Wilcox to perforin the duty required of him by section 3613 of the Code, for two terms after the order was made for the removal of the trial, produces a discontinuance, under the circumstances shown in this record.
After examining all the provisions of the Code upon the subject of removing a trial in a criminal case, and many authorities upon the subject of discontinuances, our opinion is, that such omission of the clerk does not work a discontinuance, and that there has been no discontinuance in this case.—Wiswall v. Gliddon, 4 Ala. R. 357; Calhoun v. The State, 4 Humph. R. 477; The State v. Collins, 3 Dev. R. 119; Drinkard v. The State, 20 Ala. R. 9.
In Drinkard v. The State, 20 Ala. R. 9, the defendant had never been arrested ; the cause was taken from the docket by the solicitor, with the permission of the court, and no process issued thereon for more than two years. This court correctly held, that the cause was thereby discontinued. But in that case, the court admitted, that the defendant could not be allowed to take advantage of the omissions of the clerk, a mere ministerial officer, to perform his duty. It was the active interference of the prosecuting attorney with the cause, by the pérmission of the court, in the manner above stated, which worked the discontinuance. Neither that Qase, nor any other
As the court to which the trial of a criminal case is removed, is authorized by section 8615 of the Code to direct the clerk of the court from which it was removed “ to certify any portion of the record which he has omitted, or to rectify the same”, we think a certiorari is a proper mode of directing and requiring the clerk to certify any and every part of the record which he has omitted; and when “ the original papers” have been sent to the court to which the trial is removed, that court may restore them to the clerk of the court in which the indictment was found.
In Ward v. The State, 22 Ala. R. 17, it was correctly decided, that it was not necessary that the name of the solicitor should be signed to an indictment. The absence of his name is the only objection made to the indictment in this case; we hold the indictment to be good.
When the trial of a criminal case is removed from one circuit court to another, section 3615 of the Code requires the defendant to be tried on “ the copy of the indictment”, certified as directed in section 3613. It could not, therefore, possibly be erroneous to read to the jury “ the copy of the indictment” so certified.—The State v. Matthews, 9 Porter’s R. 370, and cases therein cited; Lanier v. Br. Bank, 18 Ala. R. 625. The transcript offered to the jury in this case was thus duly certified, and contained a copy of the indictment. The objection o'f the pxdsoner was general, and was made to the transcript as a whole. As part of it was clearly legal, to-wit, the copy of the indictment, there was no error in overruling the objections as made.—Hrabowski v. Herbert, 4 Ala. R. 265; Troutman v. Melton, 15 Ala. R. 535.
There is no error in the record, and the judgment of the Circuit Court of Dallas is affirmed, and the sentence pronounced by it must be executed.