Ex parte Bryan , 44 Ala. 402 ( 1870 )

PETERS, J.

The petitioner, Harry Bryan, comes her© upon his petition, and moves this court for a writ of mandamus, or other appropriate writ or order, to compel the circuit court of Elmore county to set aside an order for a change of venue, in the case of The State vs. said Harry Bryan, upon a charge of burglary, made in the said circuit court, at the spring term, 1870, by which the trial of said case had been removed to the county of Montgomery, in this State, under direction of an order nisi for an alternative mandamus, issued out of this court at the last term, on an application for mandamus in this court, at said last term thereof.

The ground for this application is, that said order for the removal of the trial of said cause, of The State vs. Harry Bryan, abovesaid, to the county of Montgmery, was made by said circuit court, when said Bryan was absent from said circuit court, and was neither present to be heard by himself and counsel, or by either; and that said order was, therefore, erroneous for this reason.

In many eases under the practice of this court, as heretofore established, the writ of mandamus has been made, to some extent, to serve as a writ of error, or an appeal in certain specified cases, in which a party, without its aid, would suffer an irreparable injury by the denial of an important right. Such, it is contended, will be the effect in this ease.

The constitution of the State is a pledge of protection to the rights it secures to every citizen. This instrument requires — “ that in all criminal prosecutions, the accused has a right to be heard by himself and counsel, or either.” Constitution of Ala. 1867, art. 1, § 8, The import of the word prosecution, in this section of the fundamental law, is to carry on or accompany a criminal suit in the courts of the State, from the beginning to the end of the procedure. Such is the legal, as well as the etymological force of the word. Then, in every step of the proceeding, which constitutes the prosecution, in which there is any action in which the accused has a right to be heard, he has the right to be present and to be heard by himself and counsel, or either. This right is without any limit, and without any exception, when the step is not one of mere discretion in the court; such as a continuance, when the accused fails to be present, and orders of a like character. This is a constitutional provision in his favor, and cannot be disregarded by the court. The court is bound by the most solemn obligation to support and defend it.— The State v. Hughes, 2 Ala. 102, 104; Henry v. The State, 33 Ala. 389; Hall v. The State, 40 Ala. 698; 1 Bish. Cr. Proc. p. 684 ; Const. Ala. art. 15. Then the circuit court erred in making the order to remove the trial of the case of The State vs. Bryan, to the county of Montgomery, without the presence of the accused in court, to be heard upon it, if he chose. Rev. Code, § 4206, 4207; Ex Parte Chase, 43 Ala. 303; Bryan v. State, 43 Ala. 321, 323. This was such an order of the court as could not have been corrected, if wrong, by appeal, but only by mandamus. — Bryan v. State.

No doubt that a party, after making an application for a removal of the trial to another county, may abandon it. or may have it rescinded before the trial is actually removed, as he could any other interlocutory order, during the term of the court at which the same was made, before its adjournment.

The learned judge, under the order of this court, would have acted very properly in making the order for the removal of the trial to the county of Montgomery, had the accused been in court by himself and counsel, or either, to have been heard upon the order when it was made. The error was not committed in sending the case to Montgomery county, but in making the order in the absence of the accused from the court.

The answer of the learned judge of the circuit court to the order nisi of this court, would be sufficient if it showed that the order of this court had been complied with, or that the accused had abandoned his application for the removal of the trial, and consented to be tried in the county where the indictment was found.

A rule nisi is therefore granted, according to the prayer of the petitioner, requiring said order, removing said trial to the county of Montgomery, made in the absence of the prisoner from court, to be set aside; returnable to the next term of this court, on the first regular motion day thereof.