Palmer v. State

• Decision Date: 19 October 1916
• Docket Number: 4 Div. 459
• Parties: PALMER v. STATE.
• Court: Alabama Court of Appeals

73 So. 139

15 Ala.App. 262

PALMER v. STATE.

4 Div. 459

Court of Appeals of Alabama

October 19, 1916

Rehearing Denied Nov. 14, 1916

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

Jesse Palmer was convicted of manslaughter in the first degree, and he appeals. Affirmed.

Farmer & Farmer, of Dothan, for appellant.

W.L Martin, Atty. Gen., and P.W. Turner, Asst. Atty. Gen., for the State.

PELHAM P.J.

One of the points pressed on our consideration in this case as requiring a reversal is that the indictment shows the defendant was jointly indicted with one Rudolph Jones, and the judgment entry and proceedings show he was separately tried, without affirmatively showing whether he was arraigned jointly or separately, while the record fails to disclose an order of severance; the contention being that the record should show an order of severance where the defendant was jointly indicted and separately tried, and that its failure to disclose such an order requires a reversal, although no objection or exception was made or taken in the lower court and the question presented for the first time here on appeal. The judgment entry states the title of the case as "The State of Alabama v. Jesse Palmer," alone, and upon arraignment on December 10, 1915, under this caption of the case as "The State v. Jesse Palmer," the judgment entry recites that the defendant (singular), Jesse Palmer upon being duly arraigned in open court, pleaded not guilty, and "his" case was regularly set for trial on the following Monday, the 15th day of December, 1915. The judgment entry of December 15, 1915, recites that "the defendant, Jesse Palmer, pleads not guilty" before the jury on the trial of the case against him; and the verdict of the jury, adjudication of guilt, and entire judgment entry conclusively and affirmatively show that this defendant was separately arraigned and tried. Section 7842 of the Code confers on the defendant the unqualified right to elect to have a separate trial, but confers no right to demand that the trial be joint, and if there is no demand for a separate trial, as provided by statute, it is within the sound discretion of the trial court whether the trial shall be joint or several. Wilkins v. State, 112 Ala. 55, 21 So. 56. Under circuit court rule No. 31 (Code 1907, vol. 2, p. 1525) the right to demand a severance is waived in a capital case unless claimed at or before the time of arraignment, or when the case is set for trial. Miller et al. v. State, 130 Ala. 1, 30 So. 379. The indictment in this case charges a capital offense. The record does not show that at any time did the defendant avail himself of the opportunity to demand a severance, and the right to have a joint or several trial was waived and rested in the irrevisable discretion of the trial court. Wilkins v. State, supra; Jackson v. State, 104 Ala. 1, 16 So. 523; Rogers v. State, 166 Ala. 10, 52 So. 33; Hudson v. State, 137 Ala. 60, 34 So. 854. There was no inherent right in the defendant to demand a joint trial with the one jointly indicted with him (Felder v. State, 9 Ala.App. 48, 64 So. 162); and, as the judgment entry and entire proceedings set out in this transcript clearly show that the defendant was separately arraigned and tried, and that he offered no objection in the trial court to the regularity of the proceeding, we cannot see that he has anything of which to complain here, when the record shows he received the benefit of everything the statute conferred upon him had he properly and timely availed himself of it--that is, the right to elect to have a separate trial.

When jointly indicted with another or others, the right of a defendant to avail himself of the benefits of the statute to have a several trial, while a clear legal right if timely claimed, is a part of the preliminary proceeding not necessary to be affirmatively shown where, as here, no question was raised, objection made, or exception reserved questioning this preliminary step in the prosecution. See Paris v. State, 36 Ala. 232. A severance being an unqualified imperative matter of right, if properly and timely availed of (Andy v. State, 87 Ala. 23, 6 So. 53), granting it is a duty of a ministerial nature, and when the record is silent as to this class of duties, appellate courts presume that the trial court and its officers did their duty (Washington v. State, 81 Ala. 35, 38, 1 So. 18).

Cases are to be considered on the record before the court in that case, and any deficiency cannot be supplemented by reference to the record in any other case; but we do not think it out of place, in connection with what we have said as to a severance, and for the purpose of calling attention to the statement of facts (which are in the main similar to those in the record in this case) contained in the report of the case to refer to...