Stanley v. State
| Decision Date | 30 January 1890 |
| Citation | 88 Ala. 154,7 So. 273 |
| Parties | STANLEY v. STATE. |
| Court | Alabama Supreme Court |
Appeal from circuit court, Covington county; JOHN P. HUBBARD, Judge.
Indictment for embezzlement. The indictment in this case charged that John E. Stanley, "being clerk of the circuit court of said county, knowingly converted to his own use, or permitted another to use, money to about the amount of fifty dollars which was paid into his office, or received by him in his official capacity, and which said money belonged to the state of Alabama." Issue being joined on the plea of not guilty, the jury returned a verdict in these words: "We the jury, find the defendant guilty of converting to his own use more than twenty-five dollars;" and the court thereupon sentenced him to the penitentiary for the term of three years. When the case was called for trial, before pleading to the indictment, the defendant moved to strike it from the files because it was not indorsed by the clerk as required by law, showing the fact and date of filing, with his signature attached. On the hearing of this motion, it was shown to the court, as the bill of exceptions shows, that the indictment was returned into open court by the foreman of the grand jury, in the presence of 12 or more of the grand jurors; that, the indictment being against the clerk, the court appointed E. Dixon as special clerk, in the presence of the grand jury, and delivered the indictment to him; that it was retained by said Dixon until the present incumbent, W. J Mosely, was qualified, and entered on the discharge of the duties of the clerk's office, when it was delivered to him by said Dixon, and it was produced by him on the trial. On this evidence the court overruled the motion to strike the indictment from the files, and the defendant duly excepted.
J. D. Gordon, W. D. Roberts, and John Gamble, for appellant.
Atty. Gen. Martin, for the State.
Defendant moved to strike the indictment from the files on the ground that it was not indorsed, dated, and signed by the clerk, as required by the statute. The motion is based on section 4386 of the Code, which requires: "All indictments must be presented to the court by the foreman of the grand jury, in the presence of at least eleven others jurors, must be indorsed 'Filed,' and the indorsement dated and signed by the clerk." No citizen should be tried for a criminal offense until he has been regularly and legally charged; and it becomes the duty of the court to strike an indictment from the files, on objection being made in due time, when it appears to have been introduced into them without warrant of law. But the only evidence which the statute requires that an indictment has been regularly and legally returned into court is that it shall be indorsed "A true bill," which shall be signed by the foreman of the grand jury. Code, § 4353; Wesley v. State, 52 Ala. 182.
In determining whether section 4386 is mandatory or directory, the provision should be taken notice of which requires, after providing for the filing and indorsement by the clerk: "But no entry of an indictment found must be made on the minutes, nor must any indictment be inspected by any other person than the solicitor, the presiding judge, and the clerk of the court until the defendant has been arrested, or has given bail for his appearance." The purpose of the section is to prevent an inspection of the indictment by any person other than the officers named, and to constitute the indorsement by the clerk evidence that it had been properly returned into court. The statute imposes upon the clerk a public duty,-a ministerial duty,-and prescribes the mode of performance, intended to secure the orderly and proper conduct of the business of the court. It requires the duty to be performed at a certain time, and in a certain manner, and contains no nugatory words. Time is not of the essence of the duty to be performed. On this principle, it has been decided that the indorsement required to be made by the clerk may be made at any time while the cause is in fieri. Hubbard v. State, 72 Ala. 164; Wesley v. State, supra. To make the performance of such a duty essential to the validity of an indictment which has been returned into court indorsed and signed by the foreman of the grand jury, as required by the statute, would oftentimes work great inconvenience and prejudice, and defeat the ends of the administration of the criminal law. We hold the statute to be merely directory. Walker v. Chapman, 22 Ala. 116.
Defendant was indicted for knowingly converting to his own use, or permitting another to use, moneys which were...
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