Corbett v. State

• Decision Date: 19 June 1956
• Docket Number: 5 Div. 463
• Citation: 38 Ala.App. 536,91 So.2d 503
• Parties: Wylle CORBETT v. STATE.
• Court: Alabama Court of Appeals

Page 503

91 So.2d 503

38 Ala.App. 536

Wylle CORBETT v. STATE.

5 Div. 463.

Court of Appeals of Alabama.

June 19, 1956.

Rehearing Denied Aug. 14, 1956.

Geo. P. Howard, Wetumpka, for appellant.

John Patterson, Atty. Gen., and Owen Bridges, Asst. Atty. Gen., for the state.

HARWOOD, Presiding Judge.

This appellant was indicted for murder in the first degree.

In a previous trial he was adjudged guilty of murder in the second degree. On appeal this original judgment was reversed, and the cause remanded to the lower court.

Upon the call of the case for retrial the appellant moved for a continuance on the grounds that the appellant had not been arraigned as in a capital case; that there had been no order setting the case for trial as a capital case; that the case had not been set in the presence of the appellant as in capital cases; that a copy of the venire had not been served on appellant; that a copy of the indictment had not been served on appellant; and that there was no order fixing the date of trial.

In answer the Solicitor stated that this appellant had previously been tried on the indictment charging murder in the first degree, and convicted of murder in the second degree, thus excluding the higher charge; that defendant and his counsel knows he has been acquitted of the capital charge, and that appellant was being tried on the charge of murder in the second degree.

The court then stated that it was his opinion that appellant was aquitted of murder in the first degree, and could be tried only for murder in the second degree, a non capital offense, and no special venire, nor formal arraignment was required.

The court thereupon overruled the motion for a continuance, and gave an exception to the ruling.

The appellant thereupon objected to going to trial upon the same grounds as assigned to the motion for a continuance.

The court overruled this objection, and the appellant duly excepted.

The appellant then moved to quash the venire on the same grounds as assigned to the motion for a continuance, and this motion was likewise denied.

Most of the grounds assigned to the appellant's motions and objection are those requirements set forth in Sections 63 and 69, Title 30, Code of Alabama 1940, in reference to trials of persons charged with capital offenses.

Before entering into a discussion of the question now raised by the rulings of the court in the above instances it is probably well to note the provisions of Circuit Rule 30, Code 1940, Tit. 7 Appendix, which is as follows:

'A former acquittal or conviction shall be specially pleaded. And in capital cases, in which, on any former trial, a verdict of conviction has been rendered for any grade of the offense charged less than the highest, when the court calls the case for the purpose of making the usual order fixing the day for trial, the defendant shall be required by the court to announce his election to file or to waive his plea of former acquittal; and if the record of the former trial sustains such plea, its truth may be confessed by the solicitor, of which facts the court shall enter a memorandum on its docket; and in such case, the truth of the plea being admitted, no order shall be made for a special venire for the trial of the case.'

In Barnett v. State, 28 Ala.App. 293, 184 So. 702, 703, certiorari denied 236 Ala. 666, 184 So. 709, virtually the same point was presented as is now under consideration, except that the appellant had been found guilty in his first trial only of manslaughter in the second degree. As is set forth by Rice, J., in his dissenting opinion, the court, at the commencement of the trial informed the jury that the accused was being tried only for manslaughter in the second degree.

In the majority opinion, written by Bricken, P. J., the applicable decisions are reviewed and quoted.

We feel that no clearer exposition of the law applicable to the point now under consideration could be set forth than that contained in Judge Bricken's opinion, which is as follows:

'As stated, the indictment charged this defendant with a capital felony, hence the action of the court complained of in this connection was error to a reversal. There are innumerable decisions of the appellate courts of this State to this effect. The fact, if it be a fact, that the defendant was tried before upon this indictment, which trial resulted in his conviction of a lower offense comprehended and included therein, did not relieve the court of the necessity of entering the orders prescribed and designated in the Code section, supra, as no order or judgment of the court had been entered in this case showing such fact, and no plea of autre fois acquit had been interposed by the defendant, and the defendant had taken no steps to avail himself of this right, which the law conferred upon him. The oral statement of the court, shown by the record, in this connection will not suffice, and any such oral statement cannot be substituted for the mandatory requirements and provisions of the statute.

'In the case of Burton v. State, 115 Ala. 1, 22 So. 585 [at page 587], Chief Justice Brickell for the Court said:

"This indictment is in the form prescribed by the Code, and avers all the elements and constituents of murder in the first degree, which may be punished capitally,--by death, or by imprisonment in the penitentiary for life. The defendant having pleaded not guilty, the primary duty of the court--a duty to be performed in the personal presence of the defendant--was the setting a day for the trial of the cause; and the day having been set, at least one entire day prior thereto, the drawing of special jurors, not less than 25 nor more than 50, as the court deemed necessary, to be summoned by the sheriff, under the order of the court, and added to the panel of petit jurors organized for the week; the two constituting the 'venire' as it is termed in the statute, from which the jury for the trial were to be selected. Cr.Code 1886, p. 134, note, § 10. A judgment of conviction on an indictment for an offense which may be punished capitally, cannot be supported, when drawn in question on error, unless it is shown affirmatively by the record that there was by the court performance of these duties. Spicer v. State, 69 Ala. 159; Sylvester v. State, 71 Ala. 17; Posey v. State, 73 Ala. 490; Jordan v. State, 81 Ala. 20, 1 So. 577; Washington v. State, 81 Ala. 35, 1 So. 18; Watkins v. State, 89 Ala. 82, 8 So. 134. The present record does not affirmatively show that a day was set for trial of the cause, nor that there was the drawing of the special jurors for the trial, as the statute requires. It appears, rather, from the record, that there was not observance of the statute in either respect.

"If it were permissible to look to the record of this case when here at a former term (Burton v. State, 107 Ala. 108, 18 So. 284), it would appear that there had been a trial on which there was a conviction of murder in the second degree, operating an acquittal of murder in the first degree, if the acquittal had been pleaded specially by the defendant, withdrawing the case from the operation of the statutes in regulation of trials for offenses subject to capital punishment. Jordan v. State, supra. But we cannot supplement the deficiency of records by referring to the records of the former terms of this court, though it may be a record in the particular case. And, if the record was looked to, the error of the court would not be cured. The acquittal of murder in the first degree, under the practice established in De Arman v. State, 77 Ala. 10, emphasized by the rule of practice promulgated by this court December 13, 1887 (82 Ala. viii), requires the acquittal to be pleaded specially, to avoid a conviction of that offense. The record does not disclose the filing of the plea, and, as the case is presented, there was not the observance of the mandatory requirements of the statute. The failure to observe them is an error necessitating a reversal of the judgment of conviction.'

'In Linnehan v. State, 116 Ala. 471, 22 So. 662 [at page 664], the court said:

"The record in this case does not show that the defendant had been once tried on this indictment, and convicted of murder in the second degree. The court did not set a day for the trial of the cause, and order the number of jurors prescribed by the statute for the trial, and have a list of them and copy of the indictment served on the defendant, in the manner prescribed for the trial of capital cases. Section 10 of the jury law (Cr.Code 1886, p. 134). Nor does it appear of record, that the defendant pleaded specially, that he had been acquitted on a former trial of murder in the first degree, in order to avoid a conviction of that offense, as required in such cases by rule 31, 82 Ala. viii. That rule makes it the duty of the court to require the defendant, in a case for it, 'to announce his election to file or waive his plea of former acquittal.' His election to file this plea or to waive it, should appear of record. If he file it, its truth may be confessed by the solicitor, in which case, no order for a special jury to try him shall be made. None of the prerequisites for a failure to set a day for the trial of this cause as for a capital offense, and the summoning of a special venire for the trial, appear in the transcript of the record; and as for anything there appearing, the defendant was tried for an offense which might have been punished capitally, without observing the mandatory requirements of the statute for such a trial. This was erroneous. Burton v. State (115 Ala. 1), 22 So. 585. The error was not cured, by what occurred afterwards in the course of the trial, appearing alone from the bill of exceptions, as to the statement of the solicitor, that he would elect to prosecute the defendant for murder in the second degree.'

'See, also, the case of Ex parte Williams (Williams v. State), 213 Ala. 121, 122, 104 So. 282.'

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