Porter v. State

• Decision Date: 11 March 1937
• Docket Number: 6 Div. 1
• Citation: 174 So. 311,234 Ala. 11
• Parties: PORTER v. STATE.
• Court: Alabama Supreme Court

174 So. 311

234 Ala. 11

PORTER v. STATE.

6 Div. 1

Supreme Court of Alabama

March 11, 1937

Response to Question certified by Court of Appeals.

L.B Porter was convicted of a felony, and he appealed to the Court of Appeals, which certified a question to the Supreme Court under Code 1923, § 7311.

Question answered.

Answer to certified question conformed to in 174 So. 313.

To the Supreme Court of Alabama:

Presiding Judge.

Note For the information of the Supreme Court, I am hereby transmitting the views of one of the members of this court on the question certified. These views are contained in an opinion, not finally concluded, in a case here pending.

"We find the following as a part of the bill of exceptions 'The Court: "Make a note of this, Mr. Reporter, that after the Court commenced his oral charge to the jury the defendant presented twelve written charges, Nos. 1 to 12 inclusive, which under the rules of this Court, the Court refuses to pass on or give to the jury, and the defendant excepts." ' What the rules of the circuit referred to contain this court is not advised, as they nowhere appear in the bill of exceptions; but, whatever they are, or may be they could not change the rule of practice as provided by the Legislature of this State and contained in section 9509 of the Code of 1923, which declares: 'Charges moved for by either party must be in writing, and must be given or refused in the terms in which they are written; and it is the duty of the judge to write "given" or "refused," as the case may be, on the document, and sign his name thereto; which thereby becomes a part of the record.'

"We do not, by this opinion, intend in any way to limit the inherent right of courts of general jurisdiction to make such rules as are necessary in the dispatch of business in said courts, but it is within the power of the Legislature subject to such provisions as may be incorporated in the Constitution, to establish rules of procedure, by which courts shall exercise jurisdiction and conduct the trial of cases, and where a positive rule of practice is established by statute, the courts have no discretion in the matter. 15 Corpus Juris, 901(275).

"Nor is it within the power of a nisi prius court to fix any particular time during the progress of the trial at which written charges moved for by either party must be presented to the judge for his consideration, but, upon presentation to him, it becomes his duty to consider such charges; and, at some time prior to the retirement of the jury to consider the case, he must mark such charges either 'given' or 'refused' as required by the statute.

"This statute was designed to prevent arbitrary...