Smith v. State

| Ala. | Nov 15, 1893

HARALSON, J.

Tbe defendant was indicted in tbe City Court of Montgomery, at its October term, 1892, for grand larceny. He was tried on tbe 14tb of November, following, and was convicted and sentenced to tbe penitentiary for three years.

He moved in arrest of judgment upon tbe ground, that tbe day for tlie trial of bis cause was set by tbe clerk of tbe court, without any order of tbe court setting tbe cause for trial, and that tbe defendant was in custody of tbe court when tbe clerk set tbe day for trial, but was not present either in person or by attorney at that time. This motion was overruled by. tbe court. There is no bill of exceptions in tbe cause, and it is brought here on tbe record, showing tbe facts above stated.

At tbe session of tbe legislature for 1873, an act was passed (Acts 1872-3, p. 261), making it the duty of tbe clerk of tbe City Court of Montgomery to set the criminal cases pending in said court for trial, commencing on Monday of the second week of the July term, and on Monday 'of the February and October terms of said court, and to summons the witnesses in each case for the day set for the trial thereof, and requiring him in setting causes to be governed by the rules and statutes regulating the setting of civil cases for trial in said court, so far as the same were applicable and not inconsistent with said special act. By proviso, capital eases were exempted from the operation of the statute.

At the time of this enactment, there was no statute which made it the duty of clerks of courts to set down criminal causes on the dockets of the courts for trial on particular days, but they were tried whenever reached, — a practice expensive to the State, parties and witnesses, and productive of much public inconvenience. The obvious design of this special act was to facilitate the trial of such cases, at a saving of much of the expense and annoyance incident at the time to their trial in the court. It did not deprive defendants of any right or privilege they theretofore enjoyed, but rather gave them opportunity for a more certain, speedy and satisfactory trial.

Later, in 1877, the legislature .passed a similar general statute, appearing in the Code of 1876, as § 4869, and in that of 1886 as § 4447, making it the duty of the clerks of courts to set for trial all cases in their courts, except capital cases and cases of parties in custody, for particular days, and no case so set to be called before the day of its trial. This statute, however, made no reference to any special statutes on the same subject, contained no repealing provisions, and did not in any wise affect this special law for the Montgomery City Court.—Mobile & Ohio R. R. Co. v. The State, 29 Ala. 573" court="Ala." date_filed="1857-01-15" href="https://app.midpage.ai/document/mobile--ohio-railroad-v-state-6505899?utm_source=webapp" opinion_id="6505899">29 Ala. 573; Pearce v. The Bank of Mobile, 33 Ala. 693" court="Ala." date_filed="1859-01-15" href="https://app.midpage.ai/document/pearce-v-bank-of-mobile-6506439?utm_source=webapp" opinion_id="6506439">33 Ala. 693; Jefferson Co. v. Truss, 85 Ala. 490.

The special statute and the general one on the subject, each prescribing duties to be' performed by clerks of the courts, in the matter of setting their dockets, are directory merely, and when complied with by those officers, abridge no constitutional or other right of defendants to fair and impartial trials, but rather are promotive thereof.

The City Court committed no error in overruling the motion in arrest of judgment.

Affirmed.