Paris v. State

36 Ala. 232 | Ala. | 1860

STONE, J.

We have carefully considered the record, and the points pressed on our consideration, in this case, aud have not been able to find any error which, under our decisions, justifies a reversal. The silence of the record in the matter of the service of a copy of the indictment, and a list of the jurors, two entire days before the trial, and in the matter of a formal arraignment before plea pleaded, raises questions, all of which are of kindred character. Although these are among the clear legal rights of one who stands charged with a capital felony, still, they are not of that high grade — do not so enter into the very essence of the trial by jury — that the record must, in all cases, show affirmatively that they have been observed. When, as in this case, the record affirms that the prisoner, being brought to the bar, pleads not guilty, and thereupon a jury is irnpanneled, and the trial progresses in usual form to a verdict of guilty, and sentence of the law pronounced thereon ; when, notwithstanding these compliances with the most essential parts of a jury trial, no objection or exception appears to have been made in the court below, questioning the regularity of any preliminary step in the prosecution, — we but conform to our former decisions, in presuming that all has been regularly done, which does not appear by the record to have been otherwise. — Williams v. The State, 3 Stew. 454, 463; Greenwood’s case, 5 Por. 474; Matthews’ case, 9 Por. 374-5; Hughes v. The State, 1 Ala. 656; Fernandez v. The State, 7 Ala. 512; Bramlett v. The State, 31 Ala. 382; Rosenbaum v. The State, 33 Ala. 354 ; U. S. v. Gibert, 2 Sumner, 69, et seq.; Douglas v. State, 3 Wis. 820; Hughes v. The State, 35 Ala. 351.

[2.] Of the fact that the trial was had in Marshall, instead of Jackson county, the plaintiff in error cannot be heard to complain. The venue was re-transferred to Marshall at the instance of the prisoner, and the trial was then and there had, without any objection on his part. Moreover, the trial took place in the county in which the indictment was found, and in which the offense was committed. Without announcing any opinion on the question, whether a party accused of a felony can, by his consent, transfer the trial, after the venue has been once changed, to any county other than the one in which the offense was committed, we feel no hesitation in asserting, that the right to have his trial adjourned to a county free from prejudice against the accused, is a privilege secured to the prisoner, which ho may waive, either before or after the order changing the venue has been entered. Hughes v. The State, 35 Ala. 351; Rosenbaum v. The State, supra; 1 Bish. Cr. Law, §§657, 672; Gager v. Gordon, 29 Ala. 344.

The judgment of the circuit court is 'affirmed, and the sentence of the law must be executed.