Scott v. State, 8 Div. 540.

CourtSupreme Court of Alabama
Writing for the CourtTHOMAS, Justice.
Citation228 Ala. 509,154 So. 113
PartiesSCOTT v. STATE.
Docket Number8 Div. 540.
Decision Date12 April 1934

154 So. 113

228 Ala. 509

SCOTT
v.
STATE.

8 Div. 540.

Supreme Court of Alabama

April 12, 1934


Appeal from Circuit Court, Franklin County; J. Fred Johnson, Jr., Judge.

John C. Scott was convicted of murder in the second degree, and he appeals.

Affirmed.

Thos. E. Knight, Jr., Atty. Gen., for the State.

THOMAS, Justice.

The appeal presents for review only the record proper. There is no bill of exceptions. The record is made up under Supreme Court rule No. 27, vol. 4, Code of 1923, p. 888; section 3249, Code. It fails to disclose that any of appellant's mandatory rights were disregarded on the trial; or, if so, that he made objection to such rulings or action of the trial court.

The old rule under the Code of 1896, § 4325, for making a transcript, prescribed that it "need not contain (1) mere orders of continuance, (2) nor the organization of the grand jury which found the indictment, (3) nor the venire for any grand or petit jury, (4) nor the organization of regular juries for the week or term at which the case was tried, unless some question thereon was raised before the trial-court (and presented for review); but, in the absence of any such question, such proceedings are, upon appeal, presumed to have been regular and legal." (Italics and numbers supplied.)

The case of Morris v. State, 146 Ala. 66, 82, 41 So. 274, was tried under the old statute, and it was there declared that the requirements of section 5004 of the Code of 1896 were mandatory; that failing to show full compliance therewith in the record proper of a due drawing of the special venire was error to reverse. That holding was upon the inspection of the original record, and the question of the sufficiency of the venire was not raised on the trial. We have examined that original record proper, and no objection was made or raised on that trial as to failure to provide and give the defendant a proper venire; and the judgment entry fails to disclose such action as to venire of the grand or petit jury.

We may observe that in the case of Kinnebrew v. State, 132 Ala. 8, 31 So. 567, 568, which was decided before the statutes were amended, it was declared that under these statutes (sections 4325, 5004, Code 1896), in a trial for capital felony, judgment cannot be upheld "unless the record shows affirmatively that a day was set for trial, and that a special jury was drawn" in accordance with the statute, and that section 4325 did not authorize the omission of such part of the record from the transcript, as that part of the record "is not of the class which, under section 4325 of the Code (1896), may properly be omitted from the transcript."

Mr. Justice Denson, the author of the opinion in the Morris Case, supra, observed in Hatch v. State, 144 Ala. 50, 51, 40 So. 113, that under the express provisions of section 4325 of the Code (1896), it was not necessary that the transcript should show the organization [154 So. 114] of the grand jury which found the indictment, since no question was raised on the trial as to the legal sufficiency of the organization of such jury.

And in Tipton et al. v. State, 140 Ala. 39, 42, 37 So. 231, 232, it was held that it did not appear that defendants raised any question before the trial court as to the organization or drawing of the petit jury; that, under section 4325 of the Code of 1896, such contention, required to be raised on the trial, that the "record here" failed to show any order of the court "directing the summoning of...

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12 practice notes
  • Vernon v. State, 6 Div. 141.
    • United States
    • Supreme Court of Alabama
    • May 18, 1944
    ...complained of cannot be raised for the first time on appeal. Hardley v. State, 202 [245 Ala. 637] Ala. 24, 79 So. 362; Scott v. State, 228 Ala. 509, 154 So. 113; Hines v. State, 238 Ala. 575, 192 So. 423; Catrett v. State, 25 Ala.App. 331, 334, 146 So. 287. It is further alleged in the moti......
  • Duck v. State, 7 Div. 379
    • United States
    • Alabama Court of Appeals
    • January 15, 1957
    ...transcript on motion, Redman v. State, 8 Ala.App. 408, 62 So. 992. No question having been raised below, none lies here. Scott v. State, 228 Ala. 509, 154 So. 113; Davis v. State, 229 Ala. 674, 159 So. 209. Indeed we infer, from the silence of the record as to objection, that the date given......
  • Davis v. State, 6 Div. 449
    • United States
    • Supreme Court of Alabama
    • June 30, 1953
    ...section 63, Title 30, Code. The order for the service is not in the transcript and was properly omitted. In the case of Scott v. State, 228 Ala. 509, 154 So. 113, those statutes were fully analyzed in connection with prior statutes, and it was held that where there was no challenge made in ......
  • Seals v. State, 1 Div. 810
    • United States
    • Supreme Court of Alabama
    • June 2, 1960
    ...§ 380, Title 15, Code 1940; Supreme Court Rule 25, Code 1940, Tit. 7 Appendix; Davis v. State, 259 Ala. 212, 66 So.2d 714; Scott v. State, 228 Ala. 509, 154 So. 113. See Smallwood v. State, 235 Ala. 425, 179 So. The rule in the cases last cited above prevails even under the automatic appeal......
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12 cases
  • Vernon v. State, 6 Div. 141.
    • United States
    • Supreme Court of Alabama
    • May 18, 1944
    ...complained of cannot be raised for the first time on appeal. Hardley v. State, 202 [245 Ala. 637] Ala. 24, 79 So. 362; Scott v. State, 228 Ala. 509, 154 So. 113; Hines v. State, 238 Ala. 575, 192 So. 423; Catrett v. State, 25 Ala.App. 331, 334, 146 So. 287. It is further alleged in the moti......
  • Duck v. State, 7 Div. 379
    • United States
    • Alabama Court of Appeals
    • January 15, 1957
    ...transcript on motion, Redman v. State, 8 Ala.App. 408, 62 So. 992. No question having been raised below, none lies here. Scott v. State, 228 Ala. 509, 154 So. 113; Davis v. State, 229 Ala. 674, 159 So. 209. Indeed we infer, from the silence of the record as to objection, that the date given......
  • Davis v. State, 6 Div. 449
    • United States
    • Supreme Court of Alabama
    • June 30, 1953
    ...section 63, Title 30, Code. The order for the service is not in the transcript and was properly omitted. In the case of Scott v. State, 228 Ala. 509, 154 So. 113, those statutes were fully analyzed in connection with prior statutes, and it was held that where there was no challenge made in ......
  • Seals v. State, 1 Div. 810
    • United States
    • Supreme Court of Alabama
    • June 2, 1960
    ...§ 380, Title 15, Code 1940; Supreme Court Rule 25, Code 1940, Tit. 7 Appendix; Davis v. State, 259 Ala. 212, 66 So.2d 714; Scott v. State, 228 Ala. 509, 154 So. 113. See Smallwood v. State, 235 Ala. 425, 179 So. The rule in the cases last cited above prevails even under the automatic appeal......
  • Request a trial to view additional results

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