Vernon v. State, 6 Div. 141.

• Court: Supreme Court of Alabama
• Writing for the Court: LIVINGSTON, Justice.
• Citation: 245 Ala. 633,18 So.2d 388
• Decision Date: 18 May 1944
• Docket Number: 6 Div. 141.
• Parties: VERNON v. STATE.

18 So.2d 388

245 Ala. 633

VERNON
v.
STATE.

6 Div. 141.

Supreme Court of Alabama

May 18, 1944

Rehearing Denied June 22, 1944. [18 So.2d 389]

[245 Ala. 634] Walter S. Smith, of Birmingham, for appellant.

[245 Ala. 635] Wm. N. McQueen, Acting Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.

LIVINGSTON, Justice.

The appellant, Joe Vernon, was indicted, tried and convicted of murder in the first degree. He appealed to this court on the record proper, without bill of exceptions.

The progress of the case through the courts is familiar history. See Vernon v. State, 239 Ala. 593, 196 So. 96; Vernon v. Alabama, 311 U.S. 694, 61 S.Ct. 135, 85 L.Ed. 449; Id., 311 U.S. 730, 6 S.Ct. 390, 85 L.Ed. 475; In re Vernon, 240 Ala. 577, 200 So. 560; Joe Vernon v. State of Alabama, 313 U.S. 540, 61 S.Ct. 833, 85 L.Ed. 1509, and Joe Vernon v. State of Alabama, 313 U.S. 547, 61 S.Ct. 1092, 85 L.Ed. 1513.

Appellant insists that the rights guaranteed him by the Fourteenth Amendment to the Constitution of the United States have been denied him in this case.

Procedural due process, broadly speaking, contemplates the rudimentary requirements of fair play, which include a fair and open hearing before a legally constituted court or other authority, with notice and opportunity to present evidence and argument, representation by counsel, if desired, and information as to the claims of the opposing party, with reasonable opportunity to controvert them. Garrett v. Reid, 244 Ala. 254, 13 So.2d 97; Shields v. Utah Idaho Cent. R. Co., 305 U.S. 177, 59 S.Ct. 160, 83 L.Ed. 111; Morgan v. United States, 304 U.S. 1, 58 S.Ct. 773, 82 L.Ed. 1129, 42 Am.Jur. 379; Frahn v. Gregling Realization Corp., 239 Ala. 580, 195 So. [245 Ala. 636] 758; Almon v. Morgan County, Ala.Sup., 16 So.2d 511. And in Barrington v. Barrington, 206 Ala. 192, 89 So. 512, 513, 17 A.L.R. 789, it was said: "Due process of law guaranteed by the federal Constitution has been defined in terms of the equal protection of the laws, that is, as being secured by laws operating on all alike, and not subjecting the individual to the arbitrary exercise of the powers of government, unrestrained by the established principles of private right and distributive justice. Caldwell v. Texas, 137 U.S. 692, 11 S.Ct. 224, 34 L.Ed. 816; Leeper v. Texas, 139 U.S. 462, 11 S.Ct. 577, 35 L.Ed. 225."

The record discloses that upon arraignment the appellant interposed a plea of "not guilty." When the case was called for trial the appellant moved the trial court that he be allowed to withdraw the previously interposed plea of "not guilty" for the purpose of affording him an opportunity to file a motion to quash the indictment, and file pleas in abatement to the indictment. The motion was granted, and the motion and pleas filed. In substance, the motion to quash the indictment and the pleas in abatement to the indictment are the same. Each was grounded upon the alleged fact that defendant is of the negro race, and, in the selection of the grand jury, which found the indictment, members of his race were systematically excluded because of race or color; and that the only evidence before the grand jury was a confession not voluntarily made.

The issues raised by the motion to quash and the pleas in abatement were, by agreement of the parties, tried together. The trial court "denied and overruled" the motion to quash and rendered judgment in favor of the State on the pleas in abatement. That the motion and pleas presented good ground to quash and abate the indictment is unquestioned. Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074; Millhouse v. State, 232 Ala. 567, 168 So. 665; Vaughn v. State, 235 Ala. 80, 177 So. 553. But each presented for the determination of the trial court [18 So.2d 390] matters dehors the record. Clearly, in the absence of a bill of exceptions, this court cannot review the findings of the trial court on such issues. For like reasons, we cannot review the action of the trial court in overruling appellant's motion to quash the venire drawn for the trial of the defendant, and which motion was grounded on substantially the same facts set out in the motion to quash the indictment and the pleas in abatement to the indictment. Nor can we, in the absence of a bill of exceptions, review the action of the trial court in overruling appellant's motion for a new trial, or the refused charges. 7 Alabama Digest, Criminal Law, + 1090.

The cause was submitted here on appellant's motion to strike from the record the indictment, the judgment of conviction and the sentence imposed: suggestion of diminution of the record and motion for writ of certiorari to the clerk of the Circuit Court of Jefferson County, Alabama, requiring him to send up to this court a true and correct certified copy of the bill of exceptions as filed in his office in this cause; the answer of the State to appellant's suggestion of diminution of the record and motion for writ of certiorari; appellant's demurrer to said answer, and on the merits.

Appellant's motion to strike from the record the indictment, judgment of conviction and the sentence of the court, is grounded upon the fact that the minute entry fails to recite that the grand jury, which returned the indictment against him, and the petit jury which tried and convicted him, were drawn by one of the judges of the Circuit Court of Jefferson County, Alabama.

Section 380, Title 15, Code of 1940, provides:

"Such transcript must not contain mere orders of continuance, nor the organization of the grand jury which found the indictment, nor the venire for any grand or petit jury, nor the organization of regular juries for the week or time at which the case was tried, nor the order of the court for a special venire, or fixing a day for the trial of the defendant, unless some question thereon was raised before the trial court; but, in the absence of any such question, such proceedings are, upon appeal, presumed to have been regular and legal."

See, also, Supreme Court Rule 27, Code 1940, Tit. 7, Appendix.

Under the provisions of section 380, supra, and Rule 27, supra, the matters complained of cannot be raised for the first time on appeal. ...