John v. State, 2 Ala. 290

John v. State

2 Ala. 290 | Ala. | 1841

GOLDTHWAITE, J.

1. The statute of 1836, Aikin’s Digest, 2 ed. 614, s. 1, directs that the execution of the judgment shall be suspended in capital cases, whenever points are reserved as novel and difficult, for the decision of the Supreme Court, to a time not less than twenty-five, nor more than forty days, after the commencement of the next succeeding term of the Supreme Court.

The statute is directory to the Circuit Courts; but in our opinion, it also confers a right on the unfortunate criminal, who is convicted under such circumstances, as to induce the presiding Judge to present his decision for the revision of the appellate tribunal. It was intended by this statute, to give ample time for the careful examination of the questions refered; but we are not authorized to say, even when such time is given, that the statute ceases to be obligatory. This Court commenced its present session on the fourth day of January, the earliest day appointed by law ; the convict was sentenced to be executed on the twenty-second of the same month. It is therefore apparent, that only seventeen days could intervene between these days, when the shortest period permitted by the statute is twenty-five. It was erroneous not to suspend the execution of the sentence of death, inasmuch as a question was reserved at the trial for the subsequent decision of this Court.

We do not consider there was any erroneous action by the Circuit Court, in the other matters to which our attention has been called by the assignments of error.

2. The presiding judge, at the time of permitting the change of venue as to Anderson, was probably misled by the generality *293of the rule of this Court, with respect to changes of venue. [Rule 20, S. & P. 12.] The rule was not intended to apply to criminal cases, where more persons than one are indicted, when one only shall apply for a change of venue. In such a case, if the accused makes out a sufficient cause, he is entitled by statute, to a change of venue; but the original papers of right appertain to the Court, which retains jurisdiction over such of the accused, as do not desire, or cannot procure a change of venue. A transcript of the record, which must necessarily include a transcript of the indictment, as well as of all other original papers, is all which can regularly be transmitted to the Court, to which the venue is changed. The accused, who under such circumstances, asks for a change of venue, may be tried on such a transcript, and his consent, if that is to be considered as essential, will be infered from his application. If the practice was otherwise, the monstrous absurdity might result, that the prosecution against the others accused, might be terminated, or indefinitely delayed, by the measure of grace accorded the one, who sought elsewhere a trial which he might not obtain in an impartial manner in the county where the indictment was prefered.

We do not mean to be understood, that a prosecution must fail, if in such a case as this, the original papers instead of a transcript, are transmitted in consequence of an irregular order, such as we have noticed. The law of such a case can be de-determined when it shall arise.

3. The indictment, being properly a paper belonging to the files of the Circuit Court of Sumter county, could not be regularly removed from thence, unless the venue was changed by all of the accused; and therefore it was entirely competent for the Judge, presiding there at a subsequent term, to make any order necessary to insure the re-transmission of the indictment to the proper court.

4. For the same reason, we consider it not to be necessary that the Clerk of the Circuit Court of Perry county should authenticate the indictment by any certificate when he returned it to Sumter county, in obedience to the mandate of the Court.

In no aspect in which we view this case, can we arrive at the conclusion that it has been discontinued. It seems to have *294been regularly continued from term to term, and nothing to the prejudice of the accused is shewn to have occurred, nor ought it to be presumed, from the temporary absence of the indictment. We are satisfied that none of the irregularities attending the change of venue by Anderson, have any effect on the regularity of this conviction.

For the error in not suspending the execution of the sentence for the proper period, the judgment of the Circuit Court is reversed, and the case is remanded, with instructions to the Circuit Court, to proceed to render judgment according to law on the verdict of the jury.