Brown v. State , 63 Ala. 97 ( 1879 )

BBIOEELL, C. J.

-There was no error in overruling tbe motion to strike tbe statement or accusation from tbe files. It did not depart from the warrant and complaint issued by the justice of tbe peace. These simply designated by name tbe offense with which tbe defendant was charged, and tbe designation satisfied tbe requirements of tbe statutes. Independent of statutory provision, technical accuracy in such proceedings, bad before a justice of tbe peace, was not expected or required; and they were regarded as sufficient, whenever, upon a fair, reasonable construction of their language, a charge of a known criminal offense could be gathered. — Crosby v. Hawthorne, 25 Ala. 221. A complaint of tbe commission of a criminal offense, made before a justice, is now, by tbe statute, defined as “ an allegation that a person has been guilty of a designated public offense” (Code of 1876, § 4647]; and a warrant, issued upon it, is sufficient, if it designates tbe offense by name, or describes it, or if it employs terms from which tbe offense may ■ be inferred. — Code of 1876, §§ 4651, 4652.

2. On an appeal from a judgment of conviction, rendered by a justice of tbe peace, tbe trial is de novo, and governed by tbe rules and regulations prescribed for trials of appeals from tbe County Court. — Code of 1876, §§ 4700, 4701, There is no indictment, or presentment by tbe grand jury. A brief statement, signed by tbe solicitor, of tbe cause of tbe complaint, stating tbe offense charged, is sufficient. — Code of 1876, § 4729. It is obvious that tbe statutes intend to dispense with tbe fullness and precision in describing the offense, which was necessary in an indictment at common law. In a great degree, they -have reduced indictments to a bare designation of the offense charged, dispensing with averments of the facts constituting it. An overseer or apportioner of a public road may by indictment be charged, in general terms, with a failure to discharge his duties, and any acts or omissions, constituting a neglect of duty, may be proved on the trial. — Code of 1876, § 4810. The statement filed by the solicitor is fuller than would be an indictment found under this statute. It avers generally the facts which make up the offense, of which the defendant was convicted before the justice, and more fullness and precision of statement cannot be required, unless the statement, intended to be brief, is governed by different rules than prevail in reference to indictments.

3. The general principle, that oral shall not be substituted for written evidence of a fact, has no application, when the writing, if produced, would not be competent evidence of the fact to which it relates. If the list of hands, presented to the overseer by the apportioner, had been produced, it would not have been evidence of the liability of-the defendant to road duty, nor of any other material fact in the case.

The instructions to the jury were as favorable to 'the defendant, as the facts would justify.

4. In all criminal cases, whether of felony, or misdemeanor, the right of polling the jury is secured to either party by statute. The statute reads: “ When a verdict is rendered, and before it is recorded, the jury may be polled, on the requirement of either party; in which case, they must be severally asked, if it is their verdict; and if any answer in the negative, the jury must be sent out for further deliberation.” — Code of 1876, §4910. The Code of 1852 first introduced this provision. — Code of 1852, § 3604. The right of polling the jury, prior to the statute, depended upon the common law. In Hughes’s case, 2 Ala. 102, it was held, in a case of felony, that it was the clear right of the prisoner to poll the jury, and the reception of a verdict of guilty in his absence was an error, of which he could take advantage when brought up to receive sentence, and which on error would reverse the judgment of conviction. In Brister’s case, 26 Ala. 131, the case originating after the adoption of the Code, and which was also a felony, no reference is made to the statute; but the right of the prisoner to poll the jury was distinctly affirmed, on the authority of Hughes’s case; and it was said, the reason his presence, when the verdict was rendered, was indispensable to support a judgment of conviction, was the right to examine the jury by poll, ascertaining whether each juror assented to the verdict. In Waller’s case, 40 Ala. 332, a conviction of felony, without reference to the statute, it was held, that it was erroneous to allow the jury to return their verdict to the clerk, during a recess of the court, in the absence of the prisoner, though his counsel had in open court consented thereto.

There was much conflict of decision in the American courts, as to the right of a prisoner in any case, whether of felony or misdemeanor, to poll the jury; some authorities affirming the right, and others declaring that it depended upon the discretion of the court. There is a very full collection of them in an interesting article, under the title Polling the Jury, in the first number of the new series of the Southern Law Journal and Reporter. The statute was intended to establish the right in all criminal cases, removing any doubt and uncertainty as to its existence. It is a right, which, however, like the right of trial by jury, may be waived by the prisoner in cases of misdemeanor; and in any case, it may be lost, by the failure to assert it at the proper timé.

The consent given in this case was, that if the jury agreed upon their verdict,, during a brief recess of the court, it should be returned to, and received by the clerk, in the absence of the defendant. The verdict, under this agreement, was returned to, and received by the clerk, and the jury discharged. Nothing less can be intended from the consent, than that the verdict, if returned to, and received by the clerk, during the recess of the court, in the absence of the defendant, and the jury discharged, should be of the same validity and operation, as if all this had occurred in open court, and in the presence of the defendant. It is unlike a case in which the jury return to the clerk, by consent, a sealed verdict, which can be opened, and its contents made known, only in the presence of the defendant, and of the court, and by its authority. The consent, to have any effect, must have the construction we have indicated. If the verdict had been of acquittal, it would be scarcely insisted that the State had not lost the right of polling the jury; and its right is coequal and coextensive with that of the accused under the statute. There seems to us as little room for doubt, that the accused must be held to have lost the right, or, rather, to have waived it, and to have intended to waive it. What else could have been intended, where the consent extends to the delivery of an open verdict to the clerk, in the absence of the accused, to be followed by a discharge and dispersion of the jury, which hemust have known would be consequent on the rendition of the verdict ? There could be no polling of the jury in his absence, and none after their discharge and dispersion. When the verdict is returned, and received by the court, and the jury discharged, a memorandum of it is made, from which the record is subsequently made up. The memorandum is the record, to which the statute refers ; and that, it must be intended, the defendant consented should be made in his absence. Agreements deliberately made, as to the conduct and proceedings in the cause, with the sanction of the court, should be enforced according to their spirit and meaning, against defendants in criminal, as well as against suitors in civil cases. No just, discreet judge .would permit, by agreement, extravagant departures from the usual mode of proceeding, or which placed the defendant in peril of a fair and impartial trial. Provisions of law, intended alone for his benefit, he may often, for bis own convenience, waive. ■ Secondary may, by his consent, be substituted for primary evidence. Admissions of the evidence of absent witnesses he may make, rather than submit to a delay of the trial until the witnesses can be personally produced. Papers, constituting a part of the files, may, if lost, be substituted with his consent, without waiting a personal application, preceded by notice to him. There is little room for distinguishing between the capacity to consent, and to waive, in civil and in criminal cases, as to all matters which pertain merely to the conduct of the trial. The accused is attended with counsel, who are capable of advising him; and has the additional protection of the court, which would never sanction any agreement, that would operate practically to injure him; and if such was its operation, would not hesitate to relieve him from it. The consent was given by the counsel; but it was in the presence of the defendant, and without dissent on his part. The opportunity of a verdict of acquittal was obtained by it, and it is too late for him now to dissent, because the verdict is adverse.

We do not intend departing from Waller’s case, which was a conviction of felony. But when, in cases of misdemeanor, the defendant, through his counsel, deliberately consents that, in his absence, the jury may return a verdict, and be discharged, he waives, and must intend to waive, his right of polling them. Polling would become a hindrance to the administration of justice, and cast upon it reproach, if it could be exercised after a discharge of the jury, and after the publication of their verdict, when, without offending the order of the court, they could be approached, and tampered with. Tampering may be corrupt, or it may be by appeals to the sympathy of individual jurors, when corruption cannot be imputed. Prom it in any form the jury is guarded while under the control of the court. After their dispersion, the court loses control over them, and cannot again remit them to tbeir deliberations.

We find no error in the record, prejudicial to the defendant, and the judgment must be affirmed.