Powell v. State

• Decision Date: 19 June 1912
• Citation: 59 So. 328,5 Ala.App. 150
• Court: Alabama Court of Appeals
• Parties: POWELL v. STATE.

59 So. 328

5 Ala.App. 150

POWELL v. STATE.

Court of Appeals of Alabama

June 19, 1912

Rehearing Denied July 11, 1912.

Appeal from Circuit Court, Dale County; M. Sollie, Judge.

Joe Powell was convicted of perjury and appeals. Dismissed.

J. E. Z. Riley, of Ozark, for appellant.

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

PELHAM J.

This case is submitted on the state's motion to dismiss the appeal, and on the merits. The record shows that the appeal was taken on April 21, 1911, during the 1910-11 term of the Supreme Court. The appeal was returnable on the first Monday of the term next after the expiration of 20 days from the date of the appeal (Code, § 2870), or on the first Monday after May 12, 1911. The appeal was not returned until April 4, 1912, after the expiration of the 1910-11 term of the court, and after the January call of the fourth division in 1912. It thus appears that the transcript was not filed, or other action taken by the appellant in the court of review on appeal, during the term to which the appeal was taken, and is subject to dismissal on motion of the state. So. Ry. Co. v. Abraham Bros., 161 Ala 317, 49 So. 801; Porter v. Martin, 139 Ala. 318, 35 So. 1006; Martin Machine Works v. Miller, 132 Ala 629. 32 So. 305; Winthrow & Gordon v. Woodward Co., 81 Ala. 100, 2 So. 92; Sears v. Kirksey, 81 Ala. 98, 2 So. 90.

It is made the duty of the clerk in all criminal cases to prepare and forward to the clerk of the appellate court, within 20 days after the suspension of sentence pending appeal, a full and accurate transcript of the record, or, if time is given in which to prepare and have signed a bill of exceptions, the transcript must be forwarded within 20 days from the signing of such bill. Code, § 6255. The clerk is penalized for failure to perform this duty, but his failure to do so does not relieve the appellant from the necessity of complying with the requirements of the statutes and rules of the court. In fact, it is the appellant's duty to see that the statutes are complied with, and his appeal perfected in accord with rules of the court. When a defendant has taken an appeal within a year after his conviction, the steps taken thereafter looking to perfecting the appeal, such as the preparation and filing of the transcript, etc., must be done under the provisions of the statutes and rules of the court, or else the appeal is not brought to this court in such a way as to authorize its consideration, and is subject to dismissal on motion. Rule 41 of the Supreme Court and Court of Appeals. See amended rule set out in 56 South. vi. The element of time is an essential ingredient in the proper and orderly enforcement of the criminal laws, and, although a defendant has 12 months in which to take an appeal, it will hardly be contended that a defendant can wait until 11 months after conviction and then take an appeal and be entitled to an additional year in which to perfect the appeal and file the transcript in this court. He must exercise his right within the year to take the appeal, and when taken the statutes and rules in reference to perfecting the appeal must be complied with.

On account of the gravity of the offense involved (the defendant having been convicted of perjury), we have carefully examined the record with a view of considering whether we would exercise our discretion in refusing the state's motion to dismiss on account of the merit of questions raised; and considering the fact also that there seems to have been no occasion for applying these statutes and rules in criminal cases recently, there may be, on that account, some argument in favor of showing leniency at this time in their application, which, however, will no longer exist after we have called attention to the consequences for the failure to comply with them. See, also, Lampley v. State, 60. South.

The questions presented, considered on their merits, do not seem to us to show error that would require a reversal of the case. If it was error to admit the original file in the civil suit in which the defendant was charged with having sworn falsely, because the record was the best evidence, it was rendered harmless by following up the admission of these papers immediately by the introduction of the original record showing identically the same things.

The plea of coverture was sufficiently identified as having been filed in the case between one J. A. Jackson and the defendant and his wife, in which it was alleged the defendant had sworn falsely. The plea of coverture was part of the record in the case and was...