Hardwick v. State

• Citation: 164 So. 107,26 Ala.App. 536
• Decision Date: 28 June 1935
• Docket Number: 6 Div. 735
• Parties: HARDWICK et al. v. STATE.
• Court: Alabama Court of Appeals

164 So. 107

26 Ala.App. 536

HARDWICK et al. v. STATE.

6 Div. 735

Court of Appeals of Alabama

June 28, 1935

Rehearing Denied Aug. 27, 1935

Appeal from Circuit Court, Jefferson County; H.P. Heflin, Judge.

Pres Hardwick, Jim Oswald (alias Oswell), R.J. (alias Dick) Tate and C.R. Williams were convicted of dynamiting a store, and of attempting to do so, and they appeal.

Affirmed.

Certiorari denied by Supreme Court in Hardwick et al. v. State (6 Div. 835) 164 So. 112.

Busby Proctor & Carlton, Walter S. Smith, and Walter S. Smith, Jr. all of Birmingham, for appellants.

A.A. Carmichael, Atty. Gen., James L. Screws, Asst. Atty. Gen., and George Ross, of Bessemer, for the State.

SAMFORD, Judge.

Motion is made to strike the bill of exceptions on ten grounds, as follows:

"1. Because said Bill of Exceptions was not presented to the Judge approving the same within the time required by law.

"2. Because there is nothing appearing of record to show that a filing of this Bill of Exceptions with the Clerk was authorized under the law.

"3. Notwithstanding the fact that the trial judge was out of the county, there was nothing filed with the clerk at the time the same was presented to him that the trial judge was sick or out of the county where the cause was tried or for any other cause.

"4. Because in the absence of a showing as set forth in section 6438(1) of the Code of 1928 the Clerk was not authorized to mark said Bill of Exceptions filed.

"5. Because said Bill of Exceptions is not approved by any lawful Judge of the 10th Judicial Circuit, the Circuit in which the case was tried.

"6. Because the Court judicially knows that H.P. Heflin was not one of the Circuit Judges of the 10th Judicial Circuit on the date said Bill of Exceptions was signed by him as being approved.

"7. Because the signing of said Bill of Exceptions does not comply with section 6438(4) of the Code of 1928.

"8. Because the Act of the Legislature of 1927, pages 213 and 214 attempting to grant power to a judge that has resigned or his term of office expired or removed from office is unconstitutional and void.

"9. Because there has been no legal presentation of the Bill of Exceptions.

"10. Because the Bill of Exceptions is in question and answer rather than narrative form in violation of section 6438, Code of 1923, and Circuit Court Rule 32."

The bill of exceptions was prepared and filed with the clerk of the court trying the cases on February 8, 1935, within ninety days from the judgments entered. Section 6433 of the Code provides that: "Bills of exceptions may be presented to the judge or clerk at any time within ninety days from the day on which the judgment is entered, and not afterwards. *** When the bill of exceptions is presented to the clerk, it shall be his duty forthwith to deliver or forward it to the judge." There has been some confusion as to the proper presentation of a bill of exception under former statutes, but under the statute as it now is a proper presentation is made either to the judge or the clerk of the court. When presented to the clerk, he must indorse thereon the true date of presentation, and it thereupon becomes the duty of the clerk to forthwith deliver or forward it to the judge. Arnold & Co. v. Jordan, 215 Ala. 693, 112 So. 305.

The action to be taken under section 6436 of the Code, which must be taken in pari materia with section 6433, is preliminary to and as a predicate to an application to having the bill established before a judge of the appellate court.

The foregoing disposes of grounds 1, 2, 3, and 4 of the State's motion.

While the bill of exceptions is not prepared in strict compliance with the requirements of section 6438, subd. 1, of the Code of 1923, the violation is not so flagrant as to require us in this case to enforce the penalty authorized by section 6438, subd. 5, Code, supra.

The bill of exceptions was signed, within the time allowed by law, by H.P. Heflin, the judge who presided at the trial of the case, but whose term of office had expired before he signed the same. The point is now made that H.P. Heflin had no authority to sign the bill of exceptions after the expiration of the term of office and that the act of the Legislature of 1927 (Gen.Acts 1927, pp. 213 and 214), and now incorporated in Michie's Code of Ala.Laws 1928 as sections 6438(1), 6438(2), 6438(3), 6438(4) and 6438(5), is void as being in violation of the Constitution of 1901.

The act above cited undoubtedly gives to Judge Heflin the right and makes it his duty to settle and sign bills of exceptions in cases tried before him, before the expiration of his term of office, provided the bills are prepared and presented as required by law.

The Attorney General simply asserts in his motion and brief that the act in question is in violation of the Constitution of 1901, but no specific section of the Constitution is cited or invoked. The purpose of a bill of exceptions is to present to the appellate court a true and clear statement of the questions presented during the trial of the case, and we know of no inhibition in the Constitution that would prevent the Legislature from providing that the judge who presided at the trial should certify to the correctness of the questions stated, and that's all a bill of exceptions is. The motion to strike is overruled.

There were four defendants and sixteen indictments and by agreement in open court the entire sixteen cases were to be tried jointly. There were 58 jurors summoned and impaneled for the criminal division of the court, but when these cases were called for trial and the jury was to be selected 12 jurors were engaged in the trial of a misdemeanor case and 12 jurors had been transferred to another division of the court and were engaged in the trial of a quasi criminal case, thereby reducing the panel to 34. The defendants were furnished a list of these 34 jurors and required to strike in accordance with section 8642 of the Code of 1923.

The panel from which defendants were required to strike not having been reduced below the number required by law, there was no error in the ruling of the court overruling defendants' objection to being required to strike from a panel of 34 jurors. No possible injury to defendants could arise from such a ruling in the absence of fraud or undue prejudice on the part of the jurors, which is not claimed, but in any event a defendant is not entitled to draw a juror who is engaged in the trial of another case. Prater v. State, 107 Ala. 26, 18 So. 238; Dorsey v. State, 107 Ala. 157, 18 So. 199; Conn v. State, 19 Ala.App. 209, 96 So. 640; Mullins v. State, 24 Ala.App. 78, 130 So. 527.

The indictments charge the defendant with having willfully set off or exploded dynamite or other explosive in or under the store of Hill Grocery Company, Inc., a corporation, which with the property therein contained was of the value of $500 or more. In some of the cases the evidence failed to establish a completed crime as charged, but did tend to prove an attempt to commit the crime charged, and under the charge of the court verdicts were rendered convicting these defendants of attempts under the indictments charging the major crime. This was permissible and in accord with section 3307, Code 1923.

When the witness Looney was being examined by the state, he testified to and fixed the time of an explosion in the store of Hill Grocery Company at or about June 1st. During the examination of this witness it developed that there were two bombs thrown into the store of the Hill Grocery Company, one of which exploded doing damage and one where the fuse had been lighted and gave out. Looney first testified to the bomb which exploded, and there was a misunderstanding between the lawyers for the state and defendants and the court as to what the witness had really testified to. Thereupon on motion of the state the court ruled: "I will tell you, gentlemen of the jury, not to consider any other testimony of this witness, Mr. Matt Looney; just wipe it out of your minds and not consider anything he has said about this case up to this time. They will proceed now to examine him anew. And you will not consider the remarks of counsel, the Solicitor or any of the other lawyers in this case. Just wipe out his testimony and let them start anew, and be governed by his evidence, the other evidence in the case, his evidence that he gives from now on, and just not consider the other evidence he has already given." This was what the court should have done in order to prevent any confusion in the minds of the jury. It was not a question of allowing a witness to change his testimony on the stand, but of allowing the...