47 So. 590 | Ala. | 1908
— Henry Jackson was indicted for a misdemeanor in September, 1907, by the grand jury of Greene county. The solicitor of the Sixth judicial circuit, upon the authority of Code 1896, § 5283, issued subpoenas ad testificandum to two witnesses for the state, against the defendant, in the trial of said cause. On February 29, 1908, these subpoenas were executed by the sheriff, and were by that officer properly so indorsed and delivered to and filed with the clerk of the circuit court, on the docket of which court the prosecution was pending. Subsequently, and before the trial of the case, the defendant made these three separate demands upon the clerk: (1) That he make entry upon the subpoena docket of that court of the names of the witness so summoned in the cause, as required by subdivision 6, § 934, of Code 1896; (2) that he deliver the file, including said subpoenas, to the attorneys of record for the defendant, they then and there tendering a receipt therefor, in accordance with Code 1896, § 2646; and (3) that he make out and deliver to said attorneys of record for the defendant, they having for him, tendered the requisite fees therefor, “a correct transcript, properly
If, to effect a purpose of this character, it is necessary to first invoke the power of the court to which the clerk is attached before resort may be properly had to another tribunal (Ex parte Sibert, 67 Ala. 349; Ex parte Mansory, 1 Ala. 99), that condition was here met; for, whether the action of the court is invited by petition, praying an order of the court to compel the observance of a duty by the clerk with reference to a cause pending in the court, or with reference to papers or records officially in his custody, or praying mandamus to effect either of those purposes, so far as the condition stated is concerned, the court, to which the clerk is attached, is afforded the primary opportunity in the premises; the action taken or to be taken by the court being the same, in legal effect, in either event. Any other view would be insufferably technical. The duties, the performance of which were demanded of the clerk, are patently ministerial, void of discretion in exercise, and hence mandamus is the appropriate remedy. 26 Cyc. p. 199; 1 and 5 Mayfield’s Digests, under title “Mandamus.”
Generally speaking, and so from the universal policy underlying the judicial systems of this country, secrecy in the exercise of judicial power or of preliminary services leading to the effective exercise thereof, is not
“Subpoena ad testificandum” is an expression, whatever the official hand clothed with the right to issue it, of inherent power possessed by courts having the power to hear and determine causes of controversy to call for proofs of the facts involved and to summon and compel the attendance of witnesses before them. Process, to such purpose, is essentially judicial. 1 Greenleaf on Evidence, § 309. It is, as is readily seen, in entire accordance with the general policy of openness and publicity, subject to the exceptions indicated, of judicial acts and processes, that the statutory provisions cited as commanding the performance of the duties,demanded in this instance were written. That these statutory duties should be observed, when properly appealed to, cannot be the subject of argument.
Subdivision 6 of the cited section requires the clerk “to keep a separate subpoena docket for civil and criminal cases, in,which must be entered the cases in which any subpoenas were issued, the names of the witnesses, the time of the issue, and the return of the sheriff.” It may be conceded that the defendant’s substantive right to a fair and impartial trial is not jeopardized by the refusal of the clerk to accede to the demands made on him by the attorneys of record for this defendant; and
To the suggestion that the duty provided by subdivision 6 is performed if such entries are made after the final disposition of the cause, two conclusive answers occur to us: First, this provision has been a part of the stated duties of the clerk, certainly since Code 1852, § 650. And its obseiwance has, Avith practical universality, been construed in practice to require the keeping of a subpoena docket, Avitli the entries stated, during the pendency of the cause on the trial docket, and to make the requisite entries on the trial docket within a reasonable time after the issuance of the subpoena and its return by the sheriff. Such a practical. construction of the provision, if avc were Avitliout other recognized means of interpretation, would suffice to compel the conclusion indicated. The further answer to the suggestion is found in the very nature and purpose of the subpuena docket. In the first place, the subpoena docket, Avhen made as required, is not a part of the final record in a cause. It is a memorial, more permanent than the
Dockets, with us, pertain to living causes — causes in progress of determination, or in course of enforcement of the rights adjudicated therein. A cause determined and the judgment satisfied has no place on anv docket, unless restored thereto by appropriate action. So to make entry on a subpoena docket after the judgment rendered has been satisfied would be wholly vain, and no possible use for the requirement to keep such a docket could exist. To keep it, as required, during the progress of the cause through the court, affords it a purpose and service; otherwise, it has none.
Now, has this petitioner any real interest in the keeping of a subpoena docket that mandamus may issue to conserve? We think so, and upon the ground that the defendant in the cause has the right to have the opportunity afforded by such a docket, when properly kept, to know upon whom as a witness the power of the court in that cause has been exercised by the issue and execution of the court’s process. The entries on the docket grow out of the employment of the court’s inherent power in that cause, and, unless some wholesome reason exists to require secrecy, to the end that the court’s function may not be defeated by publcity, no such dangerous qualification of the general policy of the open course of justice should, as administered through our courts, be sanctioned. No good reason appears to justify the refusal to lay open on the subpoena docket who has been summoned as a witness in the cause. Such reason cannot be drawn from an assumption of improper use of the information so offered. On the contrary, a defendant may well, in accordance with the presumption of innocence that attends him until he is convicted, de
From the considerations stated, as well as from the letter of the applicable statutes, we think the clerk was also without right to refuse the other demands, viz., for the original subpoenas, then in his hands as such clerk as a part of the file in the cause, and for a certified copy thereof; The “file” in a cause includes all papers belonging to the cause. The subpoena, at least when executed, is as much a part of the file as any other mandate emanating under and in virtue of the authority of the court in that cause. The statutory provision (Code 1896, § 934, subd. 14) is, when proper tender of fees is made, imperative that the clerk shall make and deliver to any person applying for same a correct transcript of any paper in his office. Such duty is ministeral purely, and against its performance no power resides in the clerk to determine whether the applying person should have the copy sought, and, being denied the application in this instance after proper tender of the fee, mandamus was petitioner’s due.
It follows that the judgment helow is reversed, and one will be here entered awarding the writ as prayed • but it will not issue unless the clerk declines to take the course indicated in this opinion — an action on his part we do not anticipate.
Reversed and rendered.