McCaghren v. State

• Decision Date: 11 April 1974
• Citation: 292 Ala. 378,294 So.2d 766
• Parties: In re J. T. McCAGHREN v. STATE. Ex parte J. T. McCaghren. SC 654.
• Court: Alabama Supreme Court

Page 766

294 So.2d 766

292 Ala. 378

In re J. T. McCAGHREN v. STATE Ex parte J. T. McCaghren.

SC 654.

Supreme Court of Alabama.

April 11, 1974.

David B. Cauthen and Ralph E. Slate, Decatur, for petitioner.

William J. Baxley, Atty. Gen. and Wayne P. Turner, Sp. Asst. Atty. Gen., for the State, respondent.

McCALL, Justice.

The defendant was convicted of murder in the first degree and sentenced to life imprisonment. The Court of Criminal Appeals affirmed his conviction. On petition, under Rule 39, Revised Rules of Practice in the Supreme Court, Appendix to Title 7, Recompiled Code, 1958, we granted a writ of certiorari to review the decision of the appellate court.

We construe the effect of the decision of the Court of Criminal Appeals to be that Tit. 30, § 63, Code of Alabama, 1940, was without a field of operation when the defendant was tried on November 15, 1971, because the decision of the Supreme Court of the United States in the case of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346, eliminated the death penalty in capital felony convictions, thereby rendering such cases non-capital felonies, and hence, unaffected by the requirements of § 63. Furman was decided on June 29, 1972, some seven months after the defendant had been tried and convicted.

Section 63 of Tit. 30, supra, requires that whenever any person stands indicted for a capital felony, the trial court must cause a list of the names of all the jurors drawn for the week in which the trial is set, together with a copy of the indictment, to be forthwith served on the defendant by the sheriff at least one entire day before the trial.

When his case was called for trial on November 15, 1971, the defendant objected to being put to trial, because he had not been served with a copy of the indictment, nor with a copy of the jury venire. The trial judge overruled the defendant's objections and ordered him to trial. The Court of Criminal Appeals held that these rulings were without error.

While the effect of Furman v. Georgia, supra, was to withdraw the death penalty provision from our statute, Tit. 14, § 318, Code of Alabama, 1940, Hubbard v. State, 290 Ala. 118, 274 So.2d 298, still, until Furman was decided on June 29, 1972, death remained legal punishment for murder in the first degree. In Hubbard v. State, supra, the court said:

'But this is one of several cases where the defendant was on 'death row' Under a proper and legal sentence at the time of allocution and sentence. * * *' (Emphasis supplied.)

In consequence, the defendant stood indicted for a capital felony when he was tried. Murder in the first degree continued thereafter to be a capital felony for more than seven months, until June 29, 1972, when Furman was decided.

The statute, Tit. 30, § 63, supra, conferred a mandatory right on the defendant, to be served with a copy of the venire and the indictment one entire day before his trial.

In Green v. State, 160 Ala. 1, 49 So. 676, the defendant was convicted of murder and appealed. The court said:

'In Spicer v. State, 69 Ala. 159, it was ruled that in capital cases the statute, requiring the service of a copy of the indictment on the defendant or his counsel one entire day before the day set for his trial (section 7840, Code 1907), 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 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...