Lomineck v. State
| Decision Date | 18 April 1905 |
| Citation | 39 So. 676 |
| Parties | LOMINECK v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Colbert County; Ed B. Almon, Judge.
"Not officially reported."
Charles Lomineck was convicted of murder in the first degree, and he appeals. Reversed.
Kirk, Carmichael & Jackson and James Jackson, for appellant.
Massey Wilson, Atty. Gen., for the State.
The defendant in this case was tried on an indictment for murder in the first degree. The statutes require that the court shall fix a day for the trial of a capital case; that the court shall, at least one entire day before the same is set for trial, cause the box containing the names of jurors to be brought into the courtroom, and, after having the same well shaken, the presiding judge shall then and there publicly draw therefrom not less than 25 nor more than 50 of such names, a list of which shall be immediately made out by the clerk of the court, and an order issued to the sheriff to summon the persons so drawn to appear on the day set for trial; also that a copy of the indictment and of the venire shall be served on the defendant or his counsel, at least one entire day before the day set for trial.
While it is not necessary that the record shall show the service of the venire, yet the order for the same and the other matters named must appear on the record, and it must also appear that defendant was personally in court when the day for his trial was fixed. Code 1896, §§ 5003, 5004, 5273; Spicer v. State, 69 Ala. 159; Sylvester v. State, 71 Ala. 17; Washington v. State, 81 Ala. 35, 1 So. 18. None of these matters appear on the record in the case. Even if the recital in the bill of exceptions showed a compliance with the statutes, the absence of essential matters in the record cannot be supplied by recitals in the bill of exceptions. Peters v. State, 100 Ala. 10, 14 So. 896; Carleton v. State, 100 Ala. 130, 14 So. 472; Taylor v. State, 112 Ala. 69, 20 So. 848.
It is not necessary to consider the matters referred to in the assignments of error, as they are not likely to come up in a second trial.
The judgment of the court is reversed, and the cause remanded.
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Barnett v. State, 6 Div. 192.
... ... "The court may, on any day of the session, fix the time ... for the trial of any capital case or cases for any subsequent ... day of the session." ... It must ... appear from the record that the defendant was personally in ... court when the day for his trial was fixed. Lomineck v ... State, Ala.Sup., 39 So. 676 ... The ... record must show affirmatively the order fixing the time of ... the trial. Spicer v. State, 69 Ala. 159 ... In each ... and all of these respects the record fails although this ... defendant went on trial on an indictment ... ...
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McCaghren v. State
...the judgment of conviction. Spicer's Case was followed and cited in the case of Lomineck v. State, which will be found reported in Ala., 39 So. 676. The record in the present case fails to show any order for the service of a copy of the indictment on the defendant. This, under the authoriti......
- William Moneagle & Co. v. Livingston
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Green v. State
... ... was mandatory, and, unless it affirmatively appeared of ... record that an order to that effect was made by the court, it ... was ground for reversal on appeal from the judgment of ... conviction. Spicer's Case was followed and cited in the ... case of Lomineck v. State, which will be found reported in 39 ... So. 676. The record in the present case fails to show any ... order for the service of a copy of the indictment on the ... defendant. This, under the authorities cited above, ... constitutes reversible error ... The ... judgment must ... ...