Thomas v. State, 6 Div. 177

Decision Date14 June 1951
Docket Number6 Div. 177
Citation255 Ala. 632,53 So.2d 340
PartiesTHOMAS v. STATE.
CourtAlabama Supreme Court

Jack McGuire, Tuscaloosa, for appellant.

Si Garrett, Atty. Gen., and M. Roland Nachman, Jr., Asst. Atty. Gen., for the State.

BROWN, Justice.

Neither the statute, § 1, Gen.Acts 1943, p. 423, Code 1940, Tit. 7, § 827(1), nor Rule 48 of Supreme Court Practice supplementing the statute, contemplate that the original transcript of the testimony and incidents of the trial made by the court reporter from the stenographic notes shall be embodied in the record on appeal. That transcription serves its purpose when it is completed and filed with the clerk of the court within the time prescribed, 'within a period of 70 days from the date of trial or date on which motion for new trial shall have been acted upon by the court', duly authenticated by the reporter's certificate as to its correctness and that notice thereof has been given by the reporter to the parties or their attorneys of record. Code of 1940, Tit. 7, p. 137, Pocket Part; Rule 48, Supreme Court Practice.

The rule and the statute contemplate that the clerk of the court shall copy said original transcription, the verification thereof and any objections made thereto and the ruling of the Judge thereon and all other original papers filed in said case, together with the minutes and judgment, and verify the same by his certificate under the seal of the court, and as so verified such transcript constitutes the record on appeal. Code of 1940, Tit. 7, §§ 767, 768, 769.

The contention of the attorney general that the transcript of the record in this case is irregular and can be considered only to review 'the record proper' because the certificate of the court reporter appears in the record as transcribed by the clerk and is not the genuine signature of the court reporter, is without merit. Chapman v. State, 249 Ala. 30, 29 So.2d 286; West v. Givens, 246 Ala. 395, 20 So.2d 710. In the cases cited there was noncompliance with the rule and the statute by failure of the reporter to place his certificate on the original transcription of the testimony and file it with the clerk. Hence it did not become a part of the files to be transcribed by the clerk of the court as a part of the record on appeal.

This appeal is by the defendant from a judgment of conviction of murder in the second degree and a sentence to the penitentiary for life entered following his second trial under the indictment for murder in the first degree. Such punishment, if the facts in the case warranted the defendant's conviction, was within the discretion of the jury. Miller v. State, 54 Ala. 155; Scott v. State, 211 Ala. 270, 272-273, 100 So. 211.

The judgment entry recites: 'This day comes J. Monroe Ward, as Solicitor who prosecutes for the State, and comes also the defendant in his own proper person and by attorney in open court. The Solicitor, who prosecutes for the State, and the defendant's attorney in open court having agreed that the defendant was heretofore tried under the indictment herein and a verdict of conviction of Murder in the Second Degree rendered, the verdict having been set aside and a new trial granted that by operation of the law the defendant has been acquitted of Murder in the First Degree; that the defendant is now being put to trial for Murder in the Second Degree under the indictment herein, and the defendant having heretofore been duly arraigned on March 14, 1949, and having on that day plead not guilty and not guilty by reason of insanity comes now also in his own proper person and by attorney. Thereupon came a jury of twelve good and lawful men, towit: * * *.'

The second trial was entered upon without following the usual and correct practice of rearraignment of the defendant, explaining to him the effect of the verdict on the first trial and his right to plead acquittal of murder in the first degree. Stephens v. State, 254 Ala. 50, 46 So.2d 820; Howard v. State, 165 Ala. 18, 29, 50 So. 954; Crawford v. State, 112 Ala. 1, 17, 21 So. 214; 8 R.C.L. p. 107, § 70; 8 R.C.L. p. 108, §§ 72-74. 'When the defendant in a felony case is arraigned he is brought to the bar to plead in person, and it is quite generally held that a plea by his attorney will be considered a mere nullity, except a plea of not guilty--which plea cannot injure his client. * * *.' 8 R.C.L. p. 109, § 74; Note: 13 L.R.A.,N.S., 814; 14 Am.Jur. p. 939, §§ 249, 259.

If the scope of the indictment has been changed by amendment or otherwise, the defendant should not be put on trial without rearraignment. 14 Am.Jur. p. 941, § 253. If the accused fails to plead autrefois acquit as to murder in the first degree, he waives his immunity from a second prosecution for the higher offense. 14 Am.Jur. p. 945, § 261; Stephens v. State, 254 Ala. 50, 46 So.2d 820.

While there is apparent conflict in our cases as to the effect of granting a motion for new trial by the trial court, see Reynolds v. State, 1 Ala.App. 24, 55 So. 1016; Savage v. State, 12 Ala.App. 116, 68 So. 498, the weight of authority and the best considered opinions hold that where there is a trial on the merits under a valid indictment for murder in the first degree and a new trial is granted on appeal or on motion for new trial, the conviction for a lesser offense embraced in the indictment furnishes the basis for a plea of autrefois acquit of the higher offenses, if pleaded on a subsequent trial. Stephens v. State, supra; Berry v. State, 65 Ala. 117; Ex parte Spivey, 175 Ala. 43, 57 So. 491; Fields v. State, 52 Ala. 348; Mitchell v. State, 60 Ala. 26; Smith v. State, 68 Ala. 424; De Arman v. State, 71 Ala. 351; Sylvester v. State, 72 Ala. 201; State v. Standifer, 5 Port. 523; 6 Alabama Digest, Criminal Law, k193 1/2, page 118.

The statute provides and the law contemplates that all pleas in criminal cases, except pleas of guilty, not guilty, and not guilty by reason of insanity be in writing and filed by the clerk of the court. Pleas of guilty and not guilty and not guilty by reason of insanity may be pleaded orally or in writing. Code of 1940, Tit. 15, § 278 et seq.; Crawford v. State, 112 Ala. 1, 21 So. 214.

The statute requires that the defendant be arraigned and be advised by the court as to the nature and substance of the charge against him and, in cases of indictment for charges of felony, that the defendant be called on to plead in person. Howard v. State, 165 Ala. 18, 28, 29, 50 So. 954; Code of 1940, Tit. 15, §§ 278-288.

Where, as here, the legal effect of the indictment has undergone a change by reason of the defendant's previous trial, the better practice would be to rearraign the defendant and call on him to plead before the selection of a jury for his trial under the indictment. Linnehan v. State, 116 Ala. 471, 22 So. 662. The statute does not except a plea of not guilty by reason of insanity for which provision is made by §§ 423, 424, Tit. 15, Code of 1940; Tit. 15, §§ 278-288, p. 461, Form 10. The general practice of the nisi prius courts has long been to allow such plea to be interposed orally and entered of record with the plea of not guilty on arraignment. Garrett v. State, 248 Ala. 612, 29 So.2d 8.

The evidence is without dispute that appellant was regularly employed by Johnnie Wheat, a lumberman, a person other than Jack Wheat alleged in the indictment to have been killed by the appellant. The appellant had a room in the home of Georgia Crim at 1415 15th Street in Tuscaloosa, Ala., in the sawmill district, where he had lived for four years. The evidence shows that the house was what is ordinarily referred to as a 'shotgun house', in the Negro residential district, consisting of three small rooms of about the same size, in juxtaposition one after the other. The appellant's bedroom was the first room, with a single door which faced 15th Street, in which were two beds, one occupied by appellant, at the side of which was a dresser which the defendant used. The other bed on the morning of December 6, 1948, was occupied by some of the children of the family of Georgia Crim. The next and middle room was occupied by Georgia Crim and the back room was used for kitchen and dining room. The evidence shows that the defendant Thomas, who had been on the road with a load of lumber or timber, reached his bedroom about 2 A.M., December 6, 1948, had retired and was asleep when the deceased appeared on the scene, before daylight.

The deceased, as the evidence shows, was and had been for a number of years in the short loan business and had made a loan to the defendant of twenty dollars on which, as the evidence goes to show, he had made no payments, and Wheat, the deceased, had been searching for him and had made threats to kill the 'black s. o. b. when he found him.' These threats had been communicated to the defendant.

On the morning of the rencounter at the home of Georgia Crim the deceased left his home in the early morning with a number of accounts of like character, among others one against Annie May Crim, whose residence was endorsed on her card as 1415 15th Street. Deceased went to the address, as above stated, before daylight, armed with a pistol, rapped on the door, aroused Georgia Crim and asked if Alfred Thomas was in, or was there. Georgia asked who was making the inquiry and was informed by the deceased, that it was 'Mr. Wheat.' Georgia woke the defendant and told him that Mr. Wheat wanted to speak to him and Thomas got up in his night clothes and went to the door and 'just kind of half cracked the wooden door open, and Wheat said to Alfred, 'Come out. I want to talk to you.' So Alfred spoke, he said, 'I can't come out. I am in my night clothes. I can't come out.' He said, 'Well, what do you want?' He said, 'When are you going to bring my money up there,' like that. He said, 'Some time this morning. After the office opens I will get it and bring it up there.' He said, 'Is you right sure you will bring my money up...

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