Pate v. State

• Citation: 14 So.2d 246,31 Ala.App. 219
• Decision Date: 16 February 1943
• Docket Number: 6 Div. 781.
• Parties: PATE v. STATE.
• Court: Alabama Court of Appeals

14 So.2d 246

31 Ala.App. 219

PATE v. STATE.

6 Div. 781.

Alabama Court of Appeals

February 16, 1943

Rehearing Denied March 16, 1943.

Affirmed on Mandate June 22, 1943.

Tom B Ward, J. Monroe Ward, and Foster, Rice, Madison &amp Rosenfeld, all of Tuscaloosa, for appellant.

Wm. N McQueen, Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.

RICE Judge.

Appellant was tried under an indictment charging him with the offense of murder in the first degree. He was convicted of the offense of manslaughter in the first degree, and his punishment fixed at imprisonment in the penitentiary for the term of three years.

The date of his conviction was April 11, 1941. Thereafter, on May 9, 1941, his counsel prepared and filed in the circuit court a motion for a new trial. A copy of said motion was furnished on said May 9, 1941, to the Solicitor representing the State, with the statement that said motion would be called to the attention of the court on May 16, 1941.

The motion in question was called to the court's attention on May 16, 1941, at which time the court made an order continuing same to May 30, 1941.

On May 30, 1941, it was ordered by the court that the (hearing on) motion be continued to June 20, 1941.

By some five several different orders, all (each) made on the date to which the hearing in said motion had theretofore been duly and regularly continued, the date of September 5, 1941, to which date the hearing had been last continued, arrived.

On that date, viz., September 5, 1941, the following order was entered, to-wit: "This being the day to which this motion was continued for hearing comes the State of Alabama by its Solicitor, Gordon Davis, and comes also the defendant in his own proper person and by attorney in open court, and the court proceeds to hear this motion. After having heard and understood said motion the court is of the opinion that this motion is not well taken and should be overruled. It is therefore considered by the court and it is the order and judgment of the court that this motion be and it is hereby overruled. The defendant then and there in open court duly and legally excepts to the action of the court in overruling this motion."

It will be noted that on the occasion of none of the continuances of the hearing of said motion, nor on the actual hearing thereof, did the State interpose any objection to the consideration of said motion.

It is true that the motion for a new trial should have been filed, and called to the attention of the court, within thirty days from the date of the judgment of conviction. Code 1940 Tit. 13, § 119. And that this was not done. (We, of course, disregard the "certificate of the trial judge" sent up here long after the submission of the appeal. Anderson v. State, 29 Ala.App. 499, 198 So. 166, headnote 7.)

Ordinarily, this would cause the order of the trial judge entered on September 5th 1941 to be coram non judice; and would throw the date on which the bill of exceptions might be lawfully presented back to within ninety days from the date of appellant's conviction. Code 1940 Tit. 7, § 822.

The bill of exceptions was presented on November 10th 1941. This, as is apparent, was well within ninety days from the date of the overruling of appellant's motion for a new trial; but much beyond ninety days from the date of appellant's conviction. Code 1940 Tit. 7, § 822, supra. (Of course the bill was duly signed and approved.)

The State has made a motion to strike the bill of exceptions, because it was "presented too late." Code 1940 Tit. 7, § 822, supra.

We think the law, as it is epitomized in the third headnote to the report of the case of Greer et al. v. Heyer, 216 Ala. 229, 113 So. 14, should control. It is, to-wit: "Consent proceedings, which necessarily recognize the cause as still pending, operate as a waiver of any prior ground of discontinuance, which rule applies to motions for new trial." (Italics ours.)

Or, this, from the opinion in a case with which we are familiar, would seem apt, to-wit: "By appearing and unreservedly contesting the merits of the motion for new trial on June 2, 1920, the petitioner (plaintiff in the judgment in the circuit court) waived any right to claim a discontinuance consequent upon the absence (if so) of effective orders of continuance of the motion." Ex parte Schoel, 205 Ala. 248, 87 So. 801, 802.

And our Supreme Court said in the opinion in the case of Cain v. Jefferson Standard Life Ins. Co., 227 Ala. 458, 150 So. 689: "It is quite true that if both parties appear and proceed to a trial on the merits of a motion, and there is decision on the merits, the discontinuance is waived, McCarver v. Doe ex dem. Herzberg, 135 Ala. 542, 33 So. 486, or if the defendant in the motion appears and joins in the further proceedings without objection that the motion has been discontinued, the power of the court is said to be re-established to hear and determine the motion, Chilton v. Gurganus, 218 Ala. 145, 117 So. 655; Greer v. Heyer, 216 Ala. 229, 113 So. 14; Dulin v. Johnson, 216 Ala. 393, 113 So. 397; Ex parte Schoel, 205 Ala. 248, 87 So. 801."

The situation here is not different from the one causing the Supreme Court to make the observations we have quoted from the opinion in the case of Cain v. Jefferson Standard Life Ins. Co., supra. There, as here, the motion for a new trial was filed in time, i. e. within 30 days from the date of the judgment, but it was not "heard" until more than thirty days after the date of the judgment,-with no "order continuing its hearing to that day," i. e. the date of the "hearing." And while the Supreme Court held there the judgment "dismissing" the motion did not operate as fixing the date from which the "appeal might be taken"-here, it would be the date from which to measure the time within which the "bill of exceptions might be filed"-it was because there was no "consent" to the hearing on the motion. And said Court observed as we have quoted hereinabove.

So, we take it that the law by which we are governed (Code 1940 Tit. 13, § 95) is as we have quoted from Cain v. Jefferson Standard Life Ins. Co., 227 Ala. 458, 150 So. 689.

Surely if that is the law with regard to "civil matters," it would be no less lenient where a man's liberty is involved. Cf. Caraway v. State, 18 Ala.App. 547, 93 So. 376.

So here we hold that the State, through its prosecuting officer, having consented-for it did not object-to the numerous continuances of the hearing on appellant's motion for a new trial, and, at the last, viz., September 5, 1941, having taken part in the "hearing on the merits" of said motion, will not now be allowed to say that the judgment overruling said motion did not have the effect of fixing the date from which the bill of exceptions might properly be presented, in order to come within the terms of Code 1940 Tit. 7, § 822. Cain v. Jefferson Standard Life Ins. Co., supra.

Moreover, even if the bill of exceptions was not presented within ninety days "from the day on which the judgment, or the order (efficacious) granting or refusing motion for new trial," was entered, it does not follow as of course that we would strike same upon the State's motion.

There was a time when we would have done so. Code 1940 Tit. 7, § 827; Ex parte Hill, 205 Ala. 631, 89 So. 58.

But our Supreme Court has expressed itself. First, we believe, was in the opinion in Jones v. State, 237 Ala. 614, 188 So. 384, 385, wherein that court said of § 6434 of the Code of 1923-the same in all respects as § 827 of Tit. 7 of the Code of 1940-that it "is not mandatory upon us, nor are we otherwise under any imperative duty to strike the bill of exceptions in such cases. The matter is addressed to our sound discretion, to be wisely exercised in all cases. We may, or may not, strike the bill of exceptions, depending upon our conclusion as to whether or not a defendant's constitutional rights in a criminal case have or have not been secured to him.

"To refuse to strike a bill of exceptions in all cases, on motion of the attorney general (when the bill was not timely presented), will be a departure from our former holdings in such cases, but we are convinced that the relaxation of the rule in grave and important criminal cases, involving the constitutional rights of a defendant, will serve to promote the ends of justice. After all, courts are organized to administer justice without sale or denial."

Then, on the same day that the Supreme Court delivered itself as we have above quoted from Jones v. State, it put out its opinion in Rutherford v. State, 237 Ala. 613, 188 So. 385. But as both the Jones case and the Rutherford case (the Justices dividing in the Jones case) are treated in the opinion in the case of Clark v. State, 239 Ala. 10, 193 So. 320, 322 which we believe is the last expression of our Supreme Court on the subject we are discussing, we will examine the said opinion in the Clark case in order to ascertain, if we may, the law by which we are to be governed (Code 1940 Tit. 13, § 95).

But the opinion in the Clark case, as we understand it, rests the law on a quotation which it takes from the opinion in the case of Rutherford v. State, supra. It is:

"Bill of exceptions in criminal case must be taken and signed by presiding judge as in civil case. Code 1923 § 3234 [Code 1940, Tit. 15, § 365].

"The statute authorizing striking of bill of exceptions for delay in presenting or signing does not vest in Attorney General the exclusive right to decide, by moving to strike bill of exceptions on that ground, that denial of constitutional rights of defendant in criminal case may not be reviewed and, in ruling upon such motion, court will examine bill of exceptions, where set out in record on appeal, to see if...