Roberts v. State

• Court: Supreme Court of Alabama
• Writing for the Court: TYSON, J. McCLELLAN, C.J.
• Citation: 126 Ala. 74,28 So. 741
• Decision Date: 23 June 1900
• Parties: ROBERTS v. STATE.

28 So. 741

126 Ala. 74

ROBERTS
v.
STATE.

Supreme Court of Alabama

June 23, 1900

Appeal from law and equity court, Tuscaloosa county; A. S. Vandegraaff, Judge.

John Roberts was convicted of robbery, and he appeals. A motion was made to dismiss the appeal, which was granted, and a motion was made by the attorney general to vacate the judgment dismissing the appeal. Motion granted.

The appellant, John Roberts, was indicted and convicted for robbery, and sentenced to the penitentiary for five years. This case being brought here on appeal, there was a motion made to dismiss the case on the ground that the record discloses that the case was tried by a person other than the regular judge of the court, and does not affirmatively show that such person was regularly and duly selected or appointed as a special judge. It was in response to this motion the decision was rendered.

Robison Brown and Francis M. Purifoy, for appellant.

Chas. G. Brown, Atty. Gen., for the State.

TYSON, J.

The record shows that this case was tried by A. S. Vandegraaff. This court judicially knows that he was not the judge of the Tuscaloosa law and equity court, in which this cause was tried. The record does not disclose his selection or appointment as special judge. This should affirmatively appear. Article 6, § 18, Const.; Horton v. Pool, 40 Ala. 629; 11 Enc. Pl. & Prac. 790, 791, note 4. This motion to dismiss the appeal must be granted. Appeal dismissed.

Motion of Attorney General to Vacate Former Judgment Dismissing Appeal, etc.

McCLELLAN, C.J.

What purports to be a bill of exceptions appearing in the transcript in this cause shows that A. S. Vandegraaff presided on the trial in the court below as special judge. The record proper of the trial court, as certified to us, does not show the occasion for Mr. Vandegraaff's selection or appointment, nor the manner thereof, nor even the fact of such selection or appointment. It is utterly silent on the subject. On the theory that to the validity of the judgment it was essential that the appointment of the special judge should affirmatively appear upon the record of the trial court, and by certification of that record should, for the purposes of the appeal, affirmatively appear here, and that, the fact not so appearing, the judgment was void, and would not support an appeal, we entered an order on May 11, 1900 (during this term) dismissing the appeal. Upon the further consideration of the matter, invoked by the motion of the attorney general, we have reached a different conclusion, being now of opinion that the judgment as presented to us on the appeal is not void, or even reversible and voidable, on account of the state of the record in this court in respect of the trial having been had before a person as judge who is not the regular judge of the Tuscaloosa county court. Formerly there was a statute which undertook to provide for the trial of causes in which the judge of the court was disqualified by special judges. This statute was declared unconstitutional in Ex parte Amos, 51 Ala. 57, and to meet that decision the provision was embodied in the constitution itself, and constitutes section 18, art. 6, of the constitution of 1875. It is as follows: "If in any case, civil or criminal, pending in any circuit, chancery, or city court in this state, the presiding judge or chancellor shall, for any legal cause, be incompetent to try, hear, or render judgment in such cause, the parties or their attorneys of record, if it be a civil case, or the solicitor or other prosecuting officer, and the defendant or defendants, if it be a criminal case, may agree upon some disinterested person practicing in the court and learned in the law, to act as special judge or chancellor, to sit as a court, and to hear, decide and render judgment in the same manner and to the same effect as a judge of the circuit or city court, or chancellor sitting as a court might do in such case. If the case be a civil one, and the parties or their attorneys of record do not agree, or if the case be a criminal one, and the...