McSwean v. State

CourtSupreme Court of Alabama
Writing for the CourtMcCLELLAN, J.
Citation57 So. 732,175 Ala. 21
Decision Date08 February 1912
PartiesMCSWEAN v. STATE.

57 So. 732

175 Ala. 21

MCSWEAN
v.
STATE.

Supreme Court of Alabama

February 8, 1912


Appeal from Circuit Court, Coffee County; H. A. Pearce, Judge.

Henry McSwean was convicted of an offense, and he appeals. Affirmed.

Dowdell, C.J., and Mayfield, and Sayre, JJ., dissenting. [57 So. 733]

J. A. Carnley, for appellant.

Robert C. Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

McCLELLAN, J.

The defendant was convicted of carnally knowing or abusing in the attempt to carnally know a girl under the age of 12 years; and the penalty imposed was 50 years imprisonment.

The judgment entry reads: "This the 30th day of March, 1910, came Claud Riley, special solicitor, who prosecutes for the state of Alabama, and also came the defendant in his own proper person and by attorney, and the said defendant, being duly arraigned upon said indictment, for his plea thereto says not guilty, thereupon came a jury of twelve good and lawful men, to wit, L. M. Bowden, and eleven others, who, being impaneled and sworn according to law, upon their oaths do say, 'We, the jury, find the defendant guilty and fix his punishment in the penitentiary for fifty (50) years.' " The trial was had and concluded on the day upon which it was set, viz., March 30, 1910; and on that date sentence, conforming to the verdict, was imposed.

In response to certiorari the clerk certifies as follows: "* * * That I find on the trial docket the following bench notes, made in said cause, to wit: 'March 25, 1910, Deft. in open court in person and with his attorney being duly arraigned, pleads not guilty, and his case is set for trial on Wednesday, March 30, 1910, and the defendant in open court and in writing waives special venire for his trial. Written waiver on file.' 'March 30, 1910. J. & V. Guilty and punishment fixed at 50 years imprisonment in the penitentiary.' 'Deft. is sen. to imp. in pen. for 50 years.' I further certify that the above bench notes is all that appears upon the records and proceedings in said cause, and that I do not find any agreement on file waiving special venire."

The crime charged being punishable capitally, the procedure requisite in such cases should, unless waived, have been observed in the trial of this defendant. Code, § 7264, provides: "At any time before a special venire has been drawn for the trial of any capital case, if the defendant enters a plea of guilty or in writing waives the right of a special venire, such plea of guilty or such waiver of special venire shall be entered of record, and, in either event, no special jury or venire shall be necessary for the trial of such cause; but the trial of the cause shall be had and the question of the degree of guilt must be ascertained and the punishment fixed by a jury to be selected from the panel of regular petit jurors organized by the court during the week such case is set for trial, in the same manner as juries are organized for the trial of felonies not capital; and the state and the defendant shall be allowed the same number of peremptory challenges as they are respectively allowed in the trial of felonies not capital." Had the statute been complied with, the written waiver would have been entered of record. However important the observance of that feature of the statute may be, it is, when observed, but a ministerial act of the clerk of the court. Its office is to preserve a memorial of the fact that the prisoner, capitally charged, has waived the special venire the law provides. If the waiver has been filed, the omission of the clerk to comply with this ministerial requirement of the statute cannot in the very nature of the thing avail the prisoner to avoid the penalty the law imposes. It bears no relation to the inquiry of his guilt or innocence. He is not prejudiced by the failure of the clerk to record the evidence of his own act, namely, his waiver of a special venire. No judicial action, with respect to the waiver contemplated, is required by the statute. The court cannot deny the effect of the waiver, as presented, when the prisoner presents it. The court is as powerless in that case as when the prisoner pleads guilty, the other act of the prisoner, specified in the statute, whereby the provisions of law for special venire are rendered inapplicable, unobligatory in any degree. Hence it is the act of the prisoner capitally charged in waiving the special venire, which is his due, and not that of the court, thus distinguishing that line of decisons in which it is held that bench notes are simply directions to the clerk what judgments and orders should be entered in expression of judicial action of the court, viz.: Wynn v. McCraney, 156 Ala. 630, 46 So. 854; Condon v. Enger & Co., 113 Ala. 233, [57 So. 734] 21 So. 227; Morgan v. Flexner, 105 Ala. 356, 16 So. 716; Baker v. Swift, 87 Ala. 530, 6 So. 153; Park v. Lide, 90 Ala. 246, 7 So. 805; Brightman v. Meriwether, 121 Ala. 602, 25 So. 994.

In this instance the fact and form of the waiver appears alone in the bench notes on the trial docket of the court in this cause. It is urged, in effect, that the bench notes cannot serve the purpose to show a waiver in the premises, in consequence of which the necessity for the special procedure prescribed for capital cases was avoided. To sanction this contention is to ignore the bench notes, is to deny those memoranda any effect whatsoever, and so upon a matter the verity of which the defendant has not disputed and does not dispute or question in any way. Mindful of the purpose and provisions of the statute providing for the waiver, taking into account the confirmatory fact that no objection to being tried without a special venire appears to have been interposed in the court below by the prisoner, and this while represented by skilled counsel, observing the statute impelled duty of the court to pretermit the special venire when the prisoner has waived it, it is clear that the affirmation of fact made in the bench notes cannot be ignored, cannot be disregarded. Their recitals are at least prima facie true--prima facie correct. In determining the propriety and validity of amendments nunc pro tunc, such a memorandum has from an early day in our jurisprudence been treated and regarded as, at least, quasi record. Harris v. Bradford, 4 Ala. 214, 221; Glass v. Glass, 24 Ala. 468. Such dignity has been accorded that character of memoranda in our judicial processes as that beyond the term in which made final permanent records of causes have been conformed thereby and thereunto. So a discontinuance of a cause has been avoided in consequence of amendment nunc pro tunc supported by such memoranda. Yonge v. Broxson, 23 Ala. 684. And we know, as from common knowledge, that in the actual, final transcription of the minutes of the courts, expressing the rulings upon the pleadings especially, the clerical officers thereof avail, of necessity, of the memoranda--the bench notes. Naturally so, since amendment nunc pro tunc finds its first aid in essential requisite in such quasi records set down by the judge. Accordingly, the fact is shown prima facie that the defendant waived a special venire for his trial.

Did this waiver carry with it the avoidance of the requirement that an order of the court for the service of a copy of the indictment should enter in capital cases, presents the second and major question discussed by counsel. The appellant was tried when the jury law of 1909 (Acts Sp. Sess. 1909, pp. 305, 318, 399) was in force. In section 32 thereof provision was made for special venires in capital cases. It did not repeal the waiver statute before quoted. A pertinent part of that section (32) reads: "Whenever any person or persons stand indicted for a capital felony, the court must on the first day of the term, or as soon as practicable thereafter, make an order commanding the sheriff to summon not less than fifty nor more than one hundred persons including those drawn and summoned on the regular juries for the week set for the trial of the case, and shall then in open court draw from the jury box the number of names required with the regular jurors drawn and summoned for the week set for the trial to make the number named in the order, and shall cause an order to be issued to the sheriff to summon all persons therein named to appear in court on the day set for trial of the defendant and must cause a list of the names of all the jurors summoned for the week in which the trial is set, and those drawn as provided in this section, together with a copy of the indictment, to be forthwith served on the defendant by the sheriff, and the defendant shall not be entitled to any other or further notice of the jurors summoned or drawn for his trial nor of the charge or indictment upon which he is to be tried." It readily appears from the special venire feature of the jury law of 1909 that it superseded all other statutes and enactments touching the service of a copy of the indictment on the prisoner. It is apparent that, as provided for in the jury law of 1909, the requirement that the court cause the service of a copy of the indictment on the prisoner is but and only a part of the system prescribed for a special venire--a requirement that is simply and only a spoke in the wheel of the special venire. It is not an independent, distinct, prescription of the law, as now written. Indeed, the term "together" emphasizes the dependence, in contemplation of the lawmakers, of the provision for a copy of the indictment upon that for a copy of the special venire. A different conclusion prevailed here under other statutes, affirming as distinct, independent provisions, disassociated from the detailed provisions now of force with respect to special venires. See Spicer's Case, 69 Ala. 159, among others cited on brief for appellant. Under the jury law of 1909 the omission to "cause" a copy of the indictment served upon the defendant was not error in...

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13 practice notes
  • Oden-Elliott Lumber Co. v. Daniel-Gaddis Lumber Co., 6 Div. 748.
    • United States
    • Supreme Court of Alabama
    • 29 November 1923
    ...the pleading, the defendant failed to indicate to the court that on such ground-a variance-the affirmative charge was requested. Rule 34, 175 Ala. 21. The rule was to meet such a case. Refused charge 3 was fully covered in given charge 8 and the oral charge. Moreover, the contract only requ......
  • Robinson v. State, 1 Div. 163.
    • United States
    • Supreme Court of Alabama
    • 28 January 1943
    ...court. Appellant entered a plea of not guilty, and waived the drawing of a special venire for the trial of this cause. McSwean v. State, 175 Ala. 21, 57 So. 732; White v. State, 209 Ala. 546, 96 So. 709. In his opening statement to the jury the solicitor for the State said: "I expect to sho......
  • Patterson v. State, 4 Div. 733
    • United States
    • Supreme Court of Alabama
    • 16 May 1918
    ...then and there waived a special venire and consented in writing to be tried by the jurors in attendance upon the court." McSwean v. State, 175 Ala. 21, 57 So. 732; Washington v. State, 188 Ala. 101, 66 So. 34; Burton v. State, 194 Ala. 2, 69 So. 913; Harper v. State, 13 Ala.App. 47, 69 So. ......
  • Hall v. First Bank of Crossville, 7 Div. 787
    • United States
    • Supreme Court of Alabama
    • 18 May 1916
    ...to how the judgment or decree of the court shall be enrolled or entered. McLaughlin v. Beyer, 181 Ala. 427, 61 So. 62; McSwean v. State, 175 Ala. 21, 57 So. 732; Wynn et al. v. McCraney et al., 156 Ala. 630, 46 So. 854; Morgan v. Flexner et al., 105 Ala. 356, 16 So. 716. The notice of appea......
  • Request a trial to view additional results
13 cases
  • Oden-Elliott Lumber Co. v. Daniel-Gaddis Lumber Co., 6 Div. 748.
    • United States
    • Supreme Court of Alabama
    • 29 November 1923
    ...the pleading, the defendant failed to indicate to the court that on such ground-a variance-the affirmative charge was requested. Rule 34, 175 Ala. 21. The rule was to meet such a case. Refused charge 3 was fully covered in given charge 8 and the oral charge. Moreover, the contract only requ......
  • Robinson v. State, 1 Div. 163.
    • United States
    • Supreme Court of Alabama
    • 28 January 1943
    ...court. Appellant entered a plea of not guilty, and waived the drawing of a special venire for the trial of this cause. McSwean v. State, 175 Ala. 21, 57 So. 732; White v. State, 209 Ala. 546, 96 So. 709. In his opening statement to the jury the solicitor for the State said: "I expect to sho......
  • Patterson v. State, 4 Div. 733
    • United States
    • Supreme Court of Alabama
    • 16 May 1918
    ...then and there waived a special venire and consented in writing to be tried by the jurors in attendance upon the court." McSwean v. State, 175 Ala. 21, 57 So. 732; Washington v. State, 188 Ala. 101, 66 So. 34; Burton v. State, 194 Ala. 2, 69 So. 913; Harper v. State, 13 Ala.App. 47, 69 So. ......
  • Hall v. First Bank of Crossville, 7 Div. 787
    • United States
    • Supreme Court of Alabama
    • 18 May 1916
    ...to how the judgment or decree of the court shall be enrolled or entered. McLaughlin v. Beyer, 181 Ala. 427, 61 So. 62; McSwean v. State, 175 Ala. 21, 57 So. 732; Wynn et al. v. McCraney et al., 156 Ala. 630, 46 So. 854; Morgan v. Flexner et al., 105 Ala. 356, 16 So. 716. The notice of appea......
  • Request a trial to view additional results

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