Welsh v. State

• Decision Date: 20 June 1911
• Citation: 56 So. 11,1 Ala.App. 144
• Parties: WELSH v. STATE.
• Court: Alabama Court of Appeals

56 So. 11

1 Ala.App. 144

WELSH v. STATE.

Court of Appeals of Alabama

June 20, 1911

Appeal from City Court of Gadsden; A. H. Alston, Judge.

Bob Welsh was convicted of crime, and he appeals. Reversed and remanded.

W. H Standifer and George D. Motley, for appellant.

R. C Brickell, Atty. Gen., and T. H. Seay, Asst. Atty. Gen., for the State.

PELHAM J.

Section 32 of the act approved August 31, 1909 (Gen. Acts Special Session 1909, p. 305), provides that, whenever a defendant stands indicted for a capital felony, a list of the jurors or venire for his trial, together with a copy of the indictment must be "forthwith served on the defendant by the sheriff." The defendant was indicted for a capital felony (robbery), and before entering upon the trial made a motion to quash the venire on the ground that a copy of the venire was not served on the defendant as required by the statute. Proof was made on hearing the motion that the service was had on defendant's counsel, but not on defendant. The proof showed that the defendant was on bond and could not be found by the sheriff, who, after making search to find the defendant, served defendant's counsel he making no objection to the service on him. There was evidence introduced from which it would well be inferred that the defendant was purposely evading the service. The court, after hearing the evidence, overruled the motion to quash the venire, and put the defendant on trial; and from a judgment of conviction he appeals. The only ruling or error complained of is the order of the court overruling the defendant's motion to quash the venire because not served on the defendant personally.

Section 7840 of the Code of 1907 provides that the service of the venire can be made on the defendant "or on counsel appearing for him." Prior to this statute and under the provisions of the Laws of 1841 (Laws 1841, p. 174, § 53) and until the Code of 1886, § 4449, the statutory requirement was that the defendant must be served if in custody, otherwise service to be had upon his counsel. Before the Laws of 1841, the service was required to be on the defendant (Toulmin's Dig. Ala. p. 214, § 47) as is now required by section 32 of the act of 1909, supra, which amends section 7840 of the Code of 1907.

The provisions of all of these statutes have uniformly been held to be not directory merely but mandatory, a matter to which a defendant was entitled as a right, and a failure to strictly comply held to be fatal error, working a reversal of the case. State v. McLendon, 1 Stew. 195; Parsons v. State, 22 Ala. 50; Morgan v. State, 48 Ala. 65; Bain v. State, 70 Ala. 4; Brown v. State, 128 Ala. 12, 29 So. 200.

Section 32 of the present law (Acts 1909, p. 318) providing, among other things, for service upon the defendant of a list of the jurors and copy of the indictment in a capital case has been held to be a mandatory provision of the statute (Jackson v. State, 55 So. 118), and it has become the settled law of the state, under the constructions of the different statutes on the subject, that the statutes granting this right to the defendant in a capital case to have a list of the jurors to try his case and a copy of the indictment, are mandatory, requiring a strict compliance with their terms. The present law limits the service to the defendant, and authorizes it to be had on no other person, and the statute being mandatory, a strict compliance with its terms is required, and the service on any other person is without authority of law.

The correctness of this construction is emphasized by a consideration of the history of the enactments on the subject. The law requiring the service to be had upon the defendant, as first enacted, was changed so ...