Calvert v. State, 8 Div. 928.

• Citation: 26 Ala.App. 189,155 So. 389
• Decision Date: 12 June 1934
• Docket Number: 8 Div. 928.
• Parties: CALVERT v. STATE.
• Court: Alabama Court of Appeals

155 So. 389

26 Ala.App. 189

CALVERT v. STATE.

8 Div. 928.

Court of Appeals of Alabama

June 12, 1934

Appeal from Circuit Court, Lauderdale County; J. Fred Johnson, Jr. Judge.

Henry Calvert was convicted of transporting liquor in quantity of five gallons or more, and he appeals.

Reversed and remanded.

Bradshaw & Barnett, of Florence, for appellant.

Thos E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty Gen., for the State.

RICE Judge.

These things seem clear:

1. In a criminal case, a defendant is not required to file a special plea of the statute of limitations. Gambling v State, 22 Ala. App. 442, 116 So. 507; Parker v. State, 2 Ala. App. 127, 56 So. 872.

2. If the evidence fails to disclose that the offense was committed within the statute, the state fails to make out its case. Authorities supra.

3. And, of course, the burden rests upon the state to prove that the offense was committed within the statute, i. e. that the prosecution was not barred by the same. Nelson v. State, 151 Ala. 2, 43 So. 966; authorities supra.

In the instant case, it was without dispute that the offense for which appellant was on trial was committed, if committed at all, in the month of September, 1928. The indictment under which he was tried was returned on March 10, 1933.

So, it was evident, nothing else appearing, that the statute of limitations of three years (Code 1923, § 4930) had barred the prosecution after the date of October 1, 1931, and, of course, before the date of the finding of the indictment under which he was put upon trial.

The state, realizing the above, undertook to discharge the burden resting upon it, by showing that Code 1923, § 4935, providing for the suspension of the running of the statute of limitations in certain cases, applied, and had been complied with, in the case.

This effort took the form of identifying and introducing in evidence, over the appellant's objection and exception, both the trial judge's "bench notes," and the minute entry, made in the trial of a case, perhaps sufficiently shown to be that of which the present was a continuation; and which were intended to show that an indictment had been found against appellant, for this same offense, within the period of the statute of limitations, then quashed, and appellant held to answer another, the present, indictment-all as provided in the Code section hereinabove cited.

But, "records of the proceedings, judgments, and decrees of courts of record of this state are required to be kept, and when the final records are made up as constituting the judgment roll, this becomes the best evidence of the proceedings." Salmon et al. v. Salmon, 13 Ala. App. 510, 69 So. 304, 305. And "the minute entry showing the judgment constitutes the final record of the judgment." Jordan v. State, 16 Ala. App. 51, 74 So. 864, 865; Code 1923, § 10126.

We might go further, and suggest that "the trial docket is not a record, and the memoranda (the judge's 'bench notes') entered thereon by the judge operated only as a direction to the clerk as to what judgments and orders shall be entered on the court's records." Wynn et al. v. McCraney et al., 156 Ala. 630, 46 So. 854; De Bardeleben v. State, 16 Ala. App. 367, 77 So. 979.

So obviously, the minute...