*1 entire record considered We and conclude 15, 389
under Code should judgment
that the
Affirmed. Judges
theAll
STATE of BAXLEY, Attorney General STRAWBRIDGE,
Honorable Cecil H. Judge. Circuit Div. Appeals
Court of Criminal of Alabama.
April 30, 1974.
Rehearing May 21, 1974. Denied Baxley, Gen., William Atty. Winston J. Lett, Gen., Atty. Asst. George
Beck, Gen., Deputy Atty. Montgomery, for petitioner.
CATES, Presiding Judge.
Original by action asking supervisory capaci- in its ty, hold naught certain orders of County, Circuit Court of Cecil Lamar Hon. H. Strawbridge presiding. The orders question quashed some fifteen indictments. supervisory power Our 6.- derives from § Article, 03(d) of the Amendment Judicial No. to the Constitution of 1901. We consider that this within that action falls Zeanah, Donald, Williams, provision. Lee & Tusca- Davis, loosa, Hamilton, K. James (respondent herein) The trial spondent. granted to quash motions the indictments tape
because a being recorder was used the District in the sessions grand jury County of Lamar at which sworn witnesses testified viva voce. The salient feature of procedure secrecy. may grand jury A investigate, but the absence a statute compile parte it In records. Ex Burns, was 73 So.2d it person held that a (but criticized not indict ed) was entitled to have a so-called jury report expunged. ei indicts, ther impeachment, recommends record, e., puts does nothing up i. up. shuts Perhaps always this was not so in Plan- tagenet England Kings when Norman feudalism, were installing their version of making all freemen oath bound to the Sov- ereign as well as to lords whom the However, time land. subjects held English settlement of America essentially we Jury body Grand today. know I: English Law Holdsworth, History says part: 322-323 keep oath to secret the “counsel” of the made presentments State and of themselves. 73 and did amount not and never §§ do presented person assertion that assertion merely an They are guilty. * *” * suspected. that he impeachment But for witness, *3 or perjury, grand a juror may required still modern times grand jury of to disclose the testimony witness which antiquity traces of retains some by examined that body. Whether these the other varieties been lost to two enumerations compellable testimony in They jury. consider the evidence 1940, Code 30, 87, T. exclude all else § secret, or not control but the court does we need not here Gore, decide. v. State in the findings as to their advise them 68, 217 Ala. 794, seems imply. to so before comes cases which individual merely charges generally them. It
knowledge; and Holt
they
teenth
ways
tury.”
way
present day
often so acted at the end of
as to the nature of
are about
act
century. They
they
if
acted
[1927]
they please
to consider.
the business which
the thirteenth
tells
much
can act
on
They
us
the seven-
their own
that
can
at
same
they
cen-
al-
be no felony prosecution without an
ment,
gin with an indictment.
satory bill of a grand jury. Kennedy
under military law) for felonies
implication makes mandatory
except on
(as
amended
that all
Under the
a
plea
by
prosecutions
Amendment
of guilty
Constitution
This
that
before
(except
37)
by
1901,
necessary
there can
must be
requires,
indict
accu
those
8§
State,
676,
39 Ala.App.
general rule that an
rest
Gore, supra,
employed under this sec-
hearsay
hearsay
on
because
which comes
tion.
witness,
of a sworn
with
from the mouth
objection,
legal
out
becomes
evidence. See
more
Supreme
took a
restric-
Court
State, 42
Douglas
discussion
Appeals
tive view than had
Court
State, Ala.
477. Pitts v.
So.2d
Ala.App. 136,
Neverthe-
(22
791).
-
-,
-,
App.
(1974);
Wash
less,
reporting
condemned
neither court
*5
189;
ington
Ala.
A.
v.
63
Anno.
State.
37
testimony adduced be-
transcribing
L.R.3d 612.
v.
State
jury.
fore the
See Smith
14,
142Ala.
39 So.
We do not believe our cases have decid-
be-
fail to
valid distinction
see
We
30, 86,
ed the
of T.
is
effect
where there
reporter
process
a
a
tween
whereunder
single
a
that witness
legally
witness but
transcribes them
shorthand notes and
takes
incompetent. Anno.
“We are We find no for quashal cause this upon Admittedly, public be rested error cannot this case. policy versible ad jures secrecy: (1) prevent and that ruling culprit to a es- is) (and Klopfer Carolina, S. 850. prosequi Law was Under v. North 1. Nolle at Common solely acting 386 U.S. prerogative 87 S.Ct. 18 L.Ed.2d the through Crown prosecution postponed cannot be to discontinue over the objection R. Allen, (1862) valid a prosecution. & 1 B. of the defendant. spe- presence of testimony against the strong dictum being there hears of if he caping in the room. prosecutors to jury; (2) cial a him before State, also, King v. not indict- those See good name protect Blevins, supra, error was 855. But witnesses So. keep prosecution ed; and, (3) to Ala. Rush v. harmless. See or- intimidated harassed being (bailiff). trial of away from keep der to petty jury. before a indictment Gore, authority of an supra, rests on the authorizing presence of express statute by the Dis- tape recorder The use Here the District Attor- stenographer. a au- impliedly also does trict ney person expressly is a authorized tapes. use of such extraneous thorize grand jury. to the That present evidence However, the court and officer of he, preserve his work the he uses machine the State servant of a constitutional improve his is not product and recollection answer Attorney, subject District recordings long condemned so found conduct. We unlawful are not bruited about. alleged. any been case nor has none even the We do not think strictures to have entitled At all events State person apply Revere here because no would these indictments tried. present operated the unauthorized to be peremptory mandamus will writ of respondent set decide no more than this. commanding corder. We issue that he restore the aside his order and is there- application rehearing forthwith dictments of instant concern fore overruled. the trial docket. extended; Opinion application overruled. Peremptory writ awarded. Judges All the TYSON, DeCARLO, JJ., HARRIS
ALMON, J., concurs in result.
ON REHEARING
There quashed the trial court in Appeals of Alabama. had Court of Criminal dictment assigned because an investigator March attorney’s the district gone office had May Rehearing 7, 1974. Denied into the grand proceedings operate a recording Supreme machine. The Court affirmed, holding Louisiana
presence of a operator monitor or had not
been authorized fol The court statute. minority
lowed the view set out 4 A.L.
R.2d 392. Blevins with is in conflict
This
where there
(3)