78 Ala. 448 | Ala. | 1885
Section 775 of the Code of 1876 was amended by the act approved February 13, 1879 — Sess. Acts, 42. By the amended section it was provided, that when, from any one of several enumerated causes, there was no solicitor in attendance, or the solicitor was incompetent, or refused to act, the presiding judge “ must appoint a competent attorney to act in the solicitor’s place.” The sections immediately preceding section 775 show on what occasions it was necessary for a solicitor to be present, competent and willing to act, for whose absence, incoinpetency, or refusal to act, if either occurred, another was to be appointed. It was at a “ regular ter-m of the Circuit Court in their circuits,” at which he was required to “ remain until the business of the State was disposed of; ” or at a special term, “ held for the trial of persons charged with felony.” These were the occasions and happenings when a solicitor was required to be appointed. “ In all such cases, the attorney so appointed shall be entitled to all the fees allowed to solicitors, which shall be taxed against the defendant on conviction, and collected in the same manner that solicitor’s fees are collected.” And by section 773 of the Code it is enacted, that if the solicitor is absent, “ a conditional judgment must be rendered against him, for one hundred dollars,” &c. All these provisions show, that the appointment of a solicitor, when made under this statute, is made by the judge sitting as a court, and not by the judge at chambers, or while off the bench. He could not, as a mere judge, impose the penalty or forfeiture against the absent solicitor ; and in no proper sense could he be called “ the presiding judge,” unless the court was in session and he presided over it. Presiding judge, ex m term/morum, means a court in session, and a judge presiding. There is, therefore, nothing in the argument, that such appointment is made by the judge, merely as judge, and not by the court. It is the act of the court, and, to be valid, it must appear of record ; for courts speak only by their records.
On the principles declared above, Mr. Speake, who acted as prosecuting officer when the indictment in this case was found, was not a solicitor in law or fact, but the mere substitute of Jones, the lawfully chosen solicitor. He was not the appointed solicitor, for there is no legal evidence of his appointment.
It is not essential to the validity of the indictment, that Jones, the regular solicitor, or that any other solicitor, should have prepared or signed it. “ An indictment receives its legal efficacy from the finding and return of the grand jury; and the legal evidence of its verity is the return ‘ a true bill,’ apparent upon some part of it, bearing the signature of the foreman.” Holley v. The State, 75 Ala. 14, and authorities cited:
There is an imperfection in this record. The indictment was found in the Circuit Court, and the trial was had in the County Court. The record fails to show how the case got into the latter court. There should have been a certificate corresponding to section 2 of the act to regulate the trial of misdemeanors in Jackson county, approved February 9, 1881 -Sess. Acts, 232 — and that certificate should have constituted a part of the record sent to this court.
Charge No. 1, given at the instance of the State, is faulty in several respects. It pretermits time and place, and assumes as fact that Nudder got whiskey from the drug-store, when there was only oral evidence tending to prove it. Whether or not he got the whiskey, was á question for the jury to pass on. Charges 2 and 3 are free from error.
We have considered the questions raised, because they bear on the further progress of this case. We would avoid its return to this court, if we can. The appeal, however, must be dismissed, because no judgment of the court was pronounced on the jury’s verdict of guilty. It is from judgments of courts, not verdicts of juries, that appeals lie to this court.
Appeal dismissed.