Curry v. State

• Decision Date: 10 April 1919
• Docket Number: 6 Div. 831
• Citation: 82 So. 489,203 Ala. 239
• Parties: CURRY v. STATE.
• Court: Alabama Supreme Court

82 So. 489

203 Ala. 239

CURRY v. STATE.

6 Div. 831

Supreme Court of Alabama

April 10, 1919

Appeal from Circuit Court, Jefferson County; William E. Fort, Judge.

Cliff Curry, alias, etc., was convicted of murder in the first degree, and appeals. Reversed and remanded.

The amended minutes are as follows:

The court having heard the evidence and considered the same as submitted on the defendant's motion to amend the minutes of this court and the solicitor's cross-motion and answer, and it being the opinion of the court from said evidence that the minutes of this court in the case of the State v. Cliff Curry should be amended so as to speak the truth as shown by the evidence and the minutes in this case the court therefore orders, adjudges, and decrees that the minutes in this case be amended as follows, viz.: By inserting in said minutes of the 3d day of February, 1918 immediately after the words, "Appearing in open court," where the same words first appear together in said minutes of the said 3d day of February, 1918, the following words: "The defendant being then and there accompanied by his counsel, Hugh H. Ellis, and both the defendant and his counsel being in open court from the time the said jury appeared until and including the order of the court allowing the said jury to separate and discharging them and the order of mistrial in said cause." And said minutes of the 3d day of February, 1918, are hereby amended as follows: By striking out the words in said minutes of said day, namely, "By consent of the defendant," where said words occur together in the minutes of this cause on said day.

Hugh H Ellis, of Birmingham, for appellant.

J.Q Smith, Atty. Gen., and Horace Wilkinson, Asst. Atty. Gen., for the State.

THOMAS J.

The defendant was convicted of murder in the first degree, and sentenced to imprisonment for life.

The record shows that on arraignment the defendant came in his own proper person, and by attorney, and being in open court pleaded "not guilty" to the indictment for murder; that a day thereafter was fixed for the trial of his cause; that order for special venire, etc., was made and entered by the court and return thereof by the sheriff; that a continuance was had therefrom to another date; the defendant being present in person and by attorney when said order of continuance was made. On said last-named date fixed for his trial came the solicitor for the state and the defendant in his own proper person and by attorney; and, being duly arraigned upon said indictment, for his plea thereto, defendant said he was not guilty. The issue was joined on the plea, and came a jury of good and lawful men, impaneled and sworn according to law, before whom the trial of the cause was entered upon, at which trial, according to the docket or minute entry of the court, it was "made to appear to the court that, on this 3d day of February, 1918, at 3 o'clock p.m., the jury in this cause appearing in open court, after having been sent out for deliberation in this case on Friday, February 1, 1918, at 3 o'clock p.m., and reporting their utter inability to agree, and that they are hopelessly divided upon a verdict in this case, and reporting that it is their opinion that it is impossible for them to agree on a verdict in this case, after making effort and having deliberated for 48 hours, and failing to agree on a verdict in this case, it is the opinion of the court from evidence taken that the jury cannot agree upon a verdict in this cause if kept together longer, and that there is a manifest necessity for their discharge. The court, therefore, hereby allows the jury to separate, and they are discharged without reaching a verdict in this case, and by consent of the defendant a mistrial is entered by the court, and a new trial is ordered in this case."

Thereafter (February 23d) the solicitor prosecuting for the state came, and, also, the defendant in his own proper person and by attorney being in open court, it was ordered that the 4th day of March be set as the date for his trial, which cause on that date was passed and reset for a subsequent date, the record reciting that the defendant and his attorney were present in court. The court ordered the sheriff to summon the venire indicated, and that a copy of such venire and the indictment against the defendant be forthwith served on defendant by the sheriff of the county, which order was shown to have been duly executed by the sheriff.

On the day of the last trial defendant, through his counsel, filed his plea of former jeopardy, to the effect that the state ought not to further prosecute the indictment against him, for that on "January 31, 1918, at a regular term of court, which court had jurisdiction to hear and try said cause, the defendant was duly arraigned and placed upon trial before a jury of 12 men duly sworn and impaneled in said cause upon a plea of 'not guilty'; that said jury, after hearing the evidence and the charge of the court on, to wit, the 1st day of February, 1918, in the afternoon of said day retired to consider their verdict; that thereafter on, to wit, Sunday, the 3d day of February, 1918, and without the consent of defendant, the said jury and jurors were discharged by the court unlawfully and without any legal necessity therefor, and without any legal necessity therefor, and without rendering a verdict. The order of said judge discharging said jury being in words and figures as follows: ***" (the order of mistrial hereinbefore set out).

The plea further averred that defendant was the identical person charged in the indictment on which the former trial was had and now charged, and which offense is based on the same transaction and act alleged in said indictment; that the jury was discharged without the consent of defendant, and before the jury had ample and sufficient time to consider its verdict, and before the discharge of said jury was authorized by law; that there was no manifest necessity for the discharge of said jury; that said jury was discharged on a Sunday in violation of the law, and "for aught appearing the defendant nor his attorney was present in open court at the time said order declaring a mistrial was so entered as aforesaid; and that the record fails to affirmatively show that defendant was present in court at the time a mistrial was so ordered."

Defendant further moved to amend the minutes of the court in said cause by striking therefrom the recital that the mistrial was entered by "consent of the defendant"; that the record showed affirmatively that the consent so recited was interlined in the minutes of the cause by error or mistake of a deputy clerk in the office of the clerk of the circuit court.

The state answered defendant's motion to amend the minutes nunc pro tunc by motion to strike out the words "by consent of the defendant," where they occurred in the minute entry; and for further answer to the motion averred that at the time of the beginning of the trial of said cause against the defendant Curry, as shown by the minute entry, on January 31st, and "continuously thereafter, up to and including the time when the jury reported its inability to agree upon a verdict, and when the court announced its order discharging the jury and ordering a mistrial" the defendant "was present in court," and, being so present, it was immaterial whether he "consented to the discharge of said jury and the entry of the order of mistrial"; that the defendant was present in court at the time the jury reported its inability to agree on a verdict, and the order of mistrial was entered as shown by the bench notes, wherein it was recited that the defendant pleaded to the indictment and by the recitals in the minutes that he was present in court at the beginning of the trial, which said minutes and bench notes are referred to and made a part of the state's answer. The state further said that if the minutes of the court be amended, it should be to show the truth, and should recite the fact now shown by the record that "the defendant was in court at the time the jury reported its disagreement and the order of mistrial was entered," and "did not consent to the discharge of said jury or the entry of said order of mistrial, if such be the fact." The state sought to support its motion by an affidavit of one Greene, a bailiff of the circuit court, who was present during the trial of the cause against defendant and when the jury in said cause announced its inability to agree upon a verdict and when the judge discharged the jury and entered an order of mistrial, that the defendant was present in court, together with his attorney, at the time of the report of the jury of its inability to agree upon a verdict, and at the time the court entered the mistrial and discharged the jury. The defendant moved to strike the affidavit of said Greene because, among other grounds, the facts set out therein as to defendant's presence in court at the time of the order or judgment declaring a mistrial and discharge of the jury were de hors the record. The amended minute will be set out by the reporter.

The record or the docket entries show arraignment, pleas, order setting the case for trial, order for venire in due form and order, and in all such orders and docket entries is the recited fact that defendant was present in court in his own proper person and by attorney, except in the order for a special venire. And while the foregoing order or judgment of mistrial and of the discharge of the jury did not recite the presence of the defendant and his counsel at the time of mistrial and discharge of the jury, yet the foregoing docket entries or bench notes of the arraignment, pleas, order setting the case for trial, continuances thereof, and the entry upon the actual trial,...