Smith v. State
| Decision Date | 16 December 1924 |
| Docket Number | 5 Div. 527 |
| Citation | 20 Ala.App. 442,102 So. 733 |
| Parties | SMITH v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Jan. 13, 1925
Appeal from Circuit Court, Chilton County; George F. Smoot, Judge.
Esco Smith was convicted of manufacturing liquor and possessing a still, and he appeals. Affirmed.
J.B. Atkinson, of Clanton, for appellant.
Harwell G. Davis, Atty. Gen., for the State.
The appellant was indicted on November 2, 1923, for violating the prohibition law, was arrested under capias issued on the indictment and made appearance bond. This case was regularly set for trial for April 1, 1924. On March 28, 1924, the appellant was again indicted on a similar charge. Upon the last indictment no writ of arrest was issued. The clerk, on March 29, 1924, docketed a case against the defendant under the indictment found March 28th, and set it for hearing April 1st. The defendant appeared on April 1st to answer the indictment found November 2, 1923. The defendant was on April 1st put to trial, against his protest and objection, on the indictment found March 28th. The grounds of objection were (1) That he had not been arrested under said indictment; (2) that the case had not been upon the trial docket for the time required by law. To the action of the court in overruling defendant's objections and putting the defendant to trial exception was reserved.
Section 7838, Code of 1907, required the clerk of the circuit court to set for trial all criminal cases in his court, except capital cases, and cases of parties in custody, for particular days.
An act of the Legislature (Acts 1919, p. 104), approved February 15 1919, provides that no person shall be tried "on an indictment presented by the grand jury until at least one entire day after the case has been placed upon the trial docket of the court, except with the consent of the defendant"; but this section "shall not apply to cases where an indictment has been quashed or demurrer sustained thereto and a new indictment for identical offense is returned on the same day." Section 1.
The indictment on which the defendant was tried was returned into court on March 28, 1924, the case was docketed March 29th and set for trial April 1st. The regular procedure after the finding of an indictment is that the clerk shall issue a capias or warrant of arrest and place it in the hands of the sheriff for execution, and the sheriff shall arrest the defendant, and, if the case is bailable, place him under bond for his appearance in court, and make his return to the clerk, who shall then place the case upon the docket, and in case of a noncapital felony the clerk may set it for trial on a particular day of the term.
While such proceedings are usual, it is not indispensable that the clerk shall issue the capias or the sheriff shall arrest the defendant. If the defendant appears in court, although to answer another indictment, the court may order him to trial upon the new indictment, provided there has been a lapse of an entire day since the finding of the indictment. And, if an indictment has been quashed or demurrer sustained thereto, a defendant may be put to trial upon a new indictment found on the day of the trial if the new indictment is for the identical offense.
Error cannot be predicated upon the action of the trial judge in putting the defendant to trial in a noncapital felony case on an indictment upon which a warrant of arrest had not issued and the defendant had not been arrested, where the defendant appears in court. The warrant of arrest is for the purpose of bringing the defendant into court, and, if he is there, he cannot complain that no such warrant was issued. If the defendant was in court, it was in the sound discretion of the trial court to put the defendant to trial on the new indictment; the case having been on the trial docket and the indictment having been returned for at least one entire day before the trial.
The evidence for the state was directed to showing that certain officers discovered the defendant alone working at a 20-gallon still, in full operation; that about a gallon of whisky had run from the still. Upon the approach of the officers the defendant ran, was caught by some of the officers, and that the defendant there admitted that he fired up the still and that no one was with him.
The evidence for the defendant tended to show that he was looking for cows...
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