Carmichael v. Matthews , 134 Ala. 210 ( 1901 )

McCLELLAN, C. J.

The caption of an indictment is an essential and inherent part of it. It is that entry of record showing when and where the court was held, who presided as judge:, the venire for the grand jury, and who were summoned and sworn as grand jurors.— Code, § 4893; Goodloe v. State, 60 Ala. 93, and cases there cited. Being thus a part of each indictment, the entry should, in our1 opinion, be copied along with the charging part of the indictment into the final record thereof.

Bub-section 9 of section 934 of the Code makes it the duty of the clerks of the cireuit (and city) courts “to record in well bound books, within six mouths after the final determination of any suit or prosecution all the proceedings relating thereto, not previously recorded under section 2644 except the subpoenas, affidavits for continuance; commissions to take testimony, evidence and executions.”

Bection 2644, here referred ito, is limited by its express terms to-civil cases, and has no bearing on this case.

Bection 2642 of the Code is, however, not so limited and it applies to both civil amid criminal cases. It is as follows: “Double records dispensed with. — The orders, judgments and decrees entered upon the minutes of the court are parts of the record of the case to which they pertain, and need not bo copied into the final record. If so copied, no fee shall he charged therefor.” The order setting a day for the trial of a capital case, the judgment on verdict therein and the sentence pronounced on the judgment are: dearly within the provisions of this section. They are each and all necessarily entered upon the minutes of 'the court, and neither of them has any place in the final record required by sub-section 9 of section 934 for making which the act of February 18, 1897, provides compensation to the clerk from the State. So far as that act ivas intended to provide compensation for entries of judgments on the minutes of the court, the intent is conserved by other provisions fhaim that in relation to compensation for making final record. — Acts 1896-7, p. 1532.

It follows that, in our opinion, the city court erred in awarding the Avrit of mandamus to' compel the president of the board of convict inspectors to request! the auditor to pay the clerk for making a final record of the order setting a day for the trial of the convict Scott and of the judgment of conviction and sentence thereon in his case. The judgment of the city court will be reversed, and a judgment) will he here entered dismissing the petition for mandamus.

Reversed and rendered.