Spicer v. State , 69 Ala. 159 ( 1881 )

SOMERVILLE, J.

The record in this case is exceedingly defective, especially in view of the fact that the prisoner was under indictment for a capital offense.

It fails to show, in the first place, that there was any service on the prisoner of a copy of the indictment and of tlie list of the venire summoned for her trial, such as is required by statute to be made upon defendants in actual'confinement under an indictment for any capital offense. The record, however, being entirely silent in this particular and failing to show the contrary, the principle has been settled by this court, that, in the absepce of any objection by the defendant, such service will he presumed to have been regularly made. It was so ruled in the case of Paris v. The State, 36 Ala. 232, and again in Rash v. The State, 61 Ala. 90. The contrary doctrine announced in Robertson v. The State, 43 Ala. 325, that to sustain a conviction in a capital case, the record must affirmatively show a compliance with this requisition of the statute, has been in effect, and is now expressly overruled on this point.

The record, furthermore, fails to show that the sheriff summoned a special venire of fifty persons from whom to organize á jury, as ordered to be done by the court. — Code, § 4874. The order for this purpose seems to have been properly made by the presiding judge, but the record is silent as to whether or not-it was executed by the sheriff. As the defendant went to trial without objection, and a jury was organized from the regular panels summoned for the week, it may be that, in view of both the silence of the record and that of the defendant, the officer may be presumed to have faithfully discharged his duty in this regard, or that the defendant waived her statutory right conferred by law and preserved for the exercise of her option by the order of the court. This point, however, we do not expressly decide, as the judgment of • the Circuit Court must be reversed on another ground. We content- ourselves with the citation of the following authorities beai’ing on the question; Bell v. The State, 59 Ala. 55; Paris v. The State, supra; Rash v. The State, supra; 1 Bish. Cr. Law, § 996; Roberts v. The State, 68 Ala. 515.

There is a fatal defect m the record, however, in its failure to affirmatively show that the court appointed a day for the trial of the prisoner. This is a valuable safeguard conferred on defendants charged with capital crimes, and is imperatively necessary under the mandatory provisions of the statute. The Code provides that “if the defendant is indicted for a capital offense, and is in actual confinement, a copy of the indictment and a list of the jurors summoned for his trial, including the regular jury, must be delivered to him at least -one entire day before the day appointed for his trials — § 4872. And “if he is not in actual custody, and has counsel, whose names are so entered on the docket, such counsel must, on application, be furnished with a copy of the indictment and a list of the ju«rors.” — Tb. And the service in this latter case must also, as held in Bain v. The State, at the present term, be one entire day before the day set for trial. It is most obvious that the statute requires, in accordance with the long established and uniformly existing practice, that a day shall be fixed for the trial of every capital case, and that the order required to be made for a special venire shall be returnable to'this day. — Code, § 4874. These provisions, like the one requiring the service of a copy of the indictment and a list of the special venire one entire day before the appointed day of trial, are mandatory and not directory merely. — Nutt v. The State, 63 Ala. 180; Roberts v. The State, 68 Ala. 515.

We are of opinion that this is an essential part of the record in every capital ease. It is an act of the court, judicial in its nature, and expressly required by statute, and not the duty of a ministerial officer acting merely under the authority of a judicial order. We can not safely assume that it was done unless it is .affirmatively shown by the minute entries of the court. A presumption of its truth, in view of the silence of the record, is not authorized, in our opinion, by any decision heretofore made by this court. — Clark’s Man. Cr. Law, § 2588. True it was held in Paris’ case, 36 Ala. 232, .that in the absence of all objection by the defendant, a judgment of conviction will not be reversed because the record does not affirmatively show a formal arraignment of the prisoner, and the service on him of a copy of the indictment and a list of the venwe. But the last omission was the act of a ministerial officer, and the first related to a preliminary proceeding which could be waived by pleading to the indictment. — Fernandez v. The State, 7 Ala. 511; 1 Bish. Cr. Proc. § 733. And while it was held in the case of Aaron v. The State, 39 Ala. 684, by a divided court, and again in Taylor v. The State, 42 Ala. 529, that in ordinary cases of felony, the record need not affirmatively show that the prisoner was asked by the court, before sentence was pronounced against him, if he had anything to say in arrest of judgment, yet neither of these were capital cases, and in Perry v. The State, 43 Ala. 21, which was a capital case, the opposite -conclusion was reached, and is probably supported by the weight of authority. — 1 Bish. Cr. Proc. § 1118.

We take the principle then to be reasonable and sound, that where, at least in every trial for a capital offense, the statute peremptorily requires some order to be made by the court, which is of prime importance to a prisoner in securing to-him the constitutional guaranty that the “right of trial by jury shall remain inviolate,” the action of the court in this regard becomes an essential part of the record and must affirmatively appear to have been performed. “ The forms of records are deeply seated in the foundations of the law, and as they conduce to safety and certainty, they ought not to be disregarded, when the life of a human being is in question.” — Per Gibson, C. J., in Hamilton v. Commonwealth, 4 Harris, 129; Aaron’s case, supra, dissenting opinion of Justice Judge, 39 Ala. 687.

The order fixing a day for the trial of the defendant being an essential part of the record, we do not think that this is a case where the fact of the prisoner’s having proceeded to trial without objection would constitute such a waiver of her rights as to debar her in the appellate court. Unless the proper order had been made, no fair field for the exercise of an untrammeled option could be presented. We can not judicially know that a trial was not the sole alternative to continued incarceration. — 1 Bish. Cr. Proc., §§ 117, 125, 995, et seq.; Nomaque v. People, 12 Amer. Dec. 157; Moss v. State, 42 Ala. 546; State v. Hughes, 1 Ala. 635; Cooley’s Const. Lim. (4th Ed.), 394-5, [319-20]; Sanders v. State, 55 Ala. 42.

There is nothing in the objections urged to the testimony of the witness Straughn as to the confessions of the defendant. They are affirmatively shown not to have been elicited through the influence of either threats or promises, or other improper appliances, and were therefore voluntary. — Clark’s Cr. Dig. § 328; Whart. Cr. Ev. § 646; 1 Greenl. Ev. § 219.

Nor was it material, in the absence of all evidence tending to show that the confessions were involuntary, that they were made while the defendant was under legal arrest, and in response to questions propounded by the officer having her in custody. Meinaka v. The State, 55 Ala. 47; Whart. Cr. Ev. § 649; Aaron v. The State, 37 Ala. 106.

It is true that the defendant was induced to submit to a private examination of her person by physicians, through the assurance that “it would be the best thing for her that she could do.” But this act was not a confession, although the result of it was to disclose facts of a criminative character. Even in cases where confessions, by word or act, are extorted illegally, the facts developed, which go to prove the existence of the crime oí which the defendant stands charged, will be received as competent evidence. — "VYhart. Or. Ev. § 678; Sampson v. State, 54 Ala. 241; 1 Greenl. Ev. § 282.

Eor the above defect in the record, the judgment of the Circuit Court must be reversed, and the cause remanded for a new trial. ' In the meanwhile, the defendant will be retained in custody until discharged by due course of law.