Hollander v. StateHollander v. State
The four above-named appellants were jointly indicted, and jointly tried upon the indictment for the offense of robbery—in that, they feloniously took one $5 bill, and one $10 bill, and two $1 bills, lawful money of the United States, the prоperty of Bob Williams, from his person and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same, against the peace and dignity of the State of Alabama.
The crime thus charged was, under the law, a capital offense.
The statute makes it the duty of this court, on appeal, to сonsider all questions apparent on the record or reserved by bill of exceptions.
As to the record here, there is nothing to show that the trial cоurt complied with the mandatory provisions of section 8644, Code 1923, which provides: “Whenever any person or persons stand indicted for a capital fеlony, the court must, on the first day of the term, or as soon as practicable thereafter, make an order commanding the sheriff to summon not less than fifty nor more than one hundred persons, including those drawn on the regular juries for the week set for the trial of the case, and shall then in open court draw from the jury box the number of names required, with the regular jurors drawn for the week, set for the trial, to make the number named in the order, and shall cause an order to be issued tо the sheriff to summon all persons therein named to appear in court on the day set for the trial of the defendant, and must cause a list of the names оf all the jurors drawn for the week in which the trial is set, and those drawn as provided in this section, together with a copy of the indictment, to be forthwith served on the defendant, by the sheriff.”
The above orders required of the trial court are, as stated, mandatory, and a failure to strictly comply therewith by the court would neсessitate a reversal of the judgment of conviction, for in the absence of such orders shown by the judgment entry in the record the judgment cannot be upheld. Hоwever, these questions cannot be raised for the first time on appeal, as the law now is, where no question was raised before the trial court as tо the necessary orders, supra, it will be presumed on appeal that all such orders were regularly and legally made in the court below.
In this case no question in this connection is presented, therefore the lower court will not be put to error.
In our case of Catrett v. State, 25 Ala. App. 331, 146 So. 287, 288, this court said: “The law now is, where no question was raised befоre the trial court as to the order of the court for the special venire, or as to fixing the day for the trial of defendant, the transcript on apрeal should not contain such matters. In the absence of any such question, such proceedings are, upon appeal, presumed to have been regular and legal. Such are the express terms of the statute.” See, also, Scott v. State, 228 Ala. 509, 154 So. 113, and cases cited.
The trial in the lower court resulted in the conviction of these four aрpellants, their punishment was fixed at 10 years’ imprisonment in the penitentiary as to each defendant. The record discloses that all of the appеllants are white people, the women being of the ages of 18 and 19 years old respectively, and the male appellants of the age of 21 аnd 20 years respectively.
On the direct examination of Bob Williams, the alleged injured party, he testified: “My name is Bob Williams, I live in East Florence. I know the defendаnts in this case, Pie Parks, Albert Hollander, Flora Parks and Louise Twitty. On the night of the alleged hold-up I had been to Memphis and on the train that gets in Sheffield around two o‘clock in the morning. I got off at Sheffield, Mr. Fielder brought me to Florence. He is a undertaker. I had brought my dead daughter home. I got out of Fielder‘s hearse on Court Street and went to the Hooks House and called for a taxi. I called No. 100 and could not get anyone. Pie Parks and Hoi
The State offered testimony tending to corroborate Williams as tо the personal injuries claimed to have been inflicted upon him, and other relevant matters in connection with the commission of said offense.
Each of the four defendants testified as witnesses in their own behalf, and all of them emphatically denied the testimony given by Williams. The defendant Parks admitted that he struck Williаms with his fist for and on account of an alleged insult by Williams to his sister Flora Parks while riding next to her in the cab. They stoutly denied taking any money from Williams, and also that either оf the girls touched him in any manner. This direct conflict in the evidence made a jury question, rendering inapt the affirmative charges requested as to each аppellant.
We have examined and considered every exception reserved to the court‘s rulings upon the admission of the testimony, and find no revеrsible error.
The judgment of conviction from which this appeal was taken as to all four of the defendants must be, and is, affirmed.
Affirmed.
On Rehearing.
As stated in the foregoing opiniоn the four appellants were jointly indicted for robbery. They were jointly tried upon said indictment and the trial resulted in the conviction of all four of them, and from the judgment of conviction there was a joint appeal to this court.
Upon submission no brief was filed for either of the appellants. A purported application for rehearing in behalf of Albert Hollander, one of the appellants, was filed in this court on April 19, 1937, but said purported application cannot be considered because of noncompliance with provisions of
As a result of noncompliance with said rule, the application for rehearing is hereby stricken.
Application stricken.