Foster v. State, 7 Div. 832

• Decision Date: 07 November 1967
• Docket Number: 7 Div. 832
• Parties: William Walter FOSTER v. STATE.
• Court: Alabama Court of Appeals

Page 148

204 So.2d 148

44 Ala.App. 139

William Walter FOSTER v. STATE.

7 Div. 832.

Court of Appeals of Alabama.

Nov. 7, 1967.

Jas. F. Hinton, Gadsden, for appellant.

MacDonald Gallion, Atty. Gen., and Jas. H. Evans, Asst. Atty. Gen., for the State.

PER CURIAM.

Appellant, on September 14, 1962, was indicted for robbery. He was apparently then in Kilby Prison.

He claimed (in a written motion to dismiss the indictment) that 'on to-wit, September 15, 1962,' he made a written demand on the then solicitor that he be brought to trial. See Ex parte State, ex rel. Attorney General, 255 Ala. 443, 52 So.2d 158.

The motion to dismiss was filed June 9, 1965, and the Circuit Court heard evidence thereon July 8, 1965. This evidence has not been sent up in the record before this court on appeal under Act 525, September 16, 1963.

July 29, 1965, the Circuit Court--again reciting that the evidence of both defense and State had been considered--overruled the motion to dismiss. (R. VIII.)

October 6, 1965, Foster was tried and convicted on the indictment. November 9, 1965, he appealed and prayed for a pauper's transcript. The transcript deposited by the court reporter with the circuit clerk embraces only the evidence taken on the trial before the jury October 5, 1965, et seq.

Under Code 1940, T. 15, § 389, we are enjoined to search the record without presumption--either for or against the prisoner or the prosecution.

Thus we find here a ruling on a constitutional right, i.e., of speedy trial. The ruling itself came from the consideration of evidence. Hence, we are unable to pass on this ruling without the evidence on the motion.

Under Griffin v. People of the State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, our Legislature passed the poor prisoner's transcript statute, Act 525, supra. See Birdsell v. State, 41 Ala.App. 418, 133 So.2d 692, and Sanders v. State, 42 Ala.App. 419, 167 So.2d 174.

The submission is set aside and the cause is remanded to the Circuit Court for certification of the court reporter's transcript of evidence on the motion above referred to. This will be taken up under Supreme Court Rule 48.

Remanded.

JOHNSON, J., dissents.

JOHNSON, Judge (dissenting):

Appellant was arrested on April 26, 1962, for the robbery of Howard T. McClain and placed in the Etowah County Jail. Since appellant at the time of this arrest was on parole from serving a sentence for another offense committed within the State of Alabama, he was then transferred to Kilby Prison for violation of his parole to resume service of this sentence for the prior offense.

Appellant was indicted by the Grand Jury of Etowah County for the McClain robbery on September 20, 1962, and a certified copy of the writ of arrest on the indictment for this offense was sent by the sheriff to him at Kilby Prison in Montgomery.

Appellant filed a motion to dismiss this indictment on June 9, 1965, contending that the State failed to grant him a fair and speedy trial. His motion to dismiss was overruled by the trial court on July 29, 1965, and on that date in open court another copy of the indictment for this offense was delivered to appellant. Appellant was then ordered returned to Kilby Prison.

Appellant contended in this motion that he was denied his constitutional right to a speedy trial in that a period of forty-two (42) months elapsed from the date of his arrest to the date of his trial. Appellant contends that on September 15, 1962, he wrote a letter to Circuit Solicitor L. Charles Wright and inquired as to when he would be tried.

There does not appear in the record any evidence presented at the hearing held on the motion to dismiss indictments even though evidence was taken as indicated in the following excerpt from the judge's ruling:

'The defendant being present in person and being represented by counsel of his own choosing, and having offered evidence in support of the motion, and the State having offered evidence in opposition thereto, and the Court having heard the evidence and considered the same is of the opinion that said motion is due to be overruled.'

We cannot presume facts which are not shown in the record. The burden of showing error is upon the appellant and such error must be supported by the record. Nowhere in the record is there any evidence of this alleged letter written to the Circuit Solicitor or of any other request for a speedy trial. We cannot say that the trial court was in error in overruling appellant's motion to dismiss indictments. Since there is no evidence contained in the record of the hearing of the proceedings on the motion, we must presume that the trial court was correct in its ruling, rather than assume it was in error. Cook v. State, 269 Ala. 646, 115 So.2d 101. See also Edwards v. State, 274 Ala. 569, 150 So.2d 710.

On October 5, 1965, appellant was tried and found guilty by a jury and sentenced by the trial court to fifteen years imprisonment. He now appeals from that judgment and sentence.

The State's first witness was Dr. Howard T. McClain who testified that in the late afternoon of April 23, 1962, appellant came into his pharmacy armed with a pistol and under threats of violence, took $20.00 in cash from him and he then identified appellant from a police lineup at the City Hall on April 24, 1962, and stated that he was positive that appellant was the person who robbed him.

Mr. Ned Simmons testified that he was employed as Chief of Detectives for the City of Gadsden and that in the course of an investigation of the robbery in question, he arrested appellant on suspicion of robbery on April 24, 1962. He stated that while riding in the police car appellant, without threats, inducements on the part of the officers, or any hope of reward, orally admitted committing the robbery.

Appellant's Assignment of Error No. 2 asserts that he did not waive his right to a speedy trial since he wrote a letter to the solicitor, which was all he knew to do before he obtained counsel.

Since the record reflects no proof of the alleged letter to the solicitor, I must presume that appellant waived his rights to a speedy trial by not demanding it. The appellant had been notified by mail at Kilby Prison of the charges against him and had ample opportunity to demand a speedy trial.

I have not only conducted a diligent search of the record, but have also made a separate inquiry into the existence of the letter in question, with no proof of the letter's existence being found. If appellant wished to have this alleged letter introduced into the record for evidentiary value, he should have placed it in the record pursuant to Code of Alabama, 1940, Tit. 7, Sec. 827(1).

The Code of Alabama, 1940, Tit. 15, Sec. 389, states in part as follows:

'* * * the court must consider all questions apparent on the record or reserved by bill of exceptions. * * *'

Thus, the court may and must consider the record, but is limited to what the record contains. James v. State, 28 Ala.App. 225, 181 So. 809.

The case of Ex parte State ex rel. Attorney General, 255 Ala. 443, 52 So.2d 158, states as follows:

'* * * the majority view is that a demand for a trial or objection to the postponement of the trial, or some other effort to secure a speedy trial on the part of the accused, ordinarily must be affirmatively shown to entitle him to a discharge on the ground of delay. Frankel v. Woodrough, supra (8 Cir., 7 F.2d 796); Phillips v. United States, 8 Cir., 201 F. 259, 262; Worthington v. United States, 7 Cir., 1 F.2d 154.'

In the case of Worthington v. United States, supra, the Supreme Court of the United States stated as follows:

'The principal assignment of error is the ruling of the court in refusing to dismiss the defendants upon their plea, and sustaining plaintiff's demurrer thereto. The record fails to show a single effort...