Culpepper v. State , 17 Ala. App. 611 ( 1920 )

The defendant was convicted of murder in the second degree, and his punishment fixed at 10 years in the penitentiary. The record contains no bill of exceptions, and the time for filing same has expired.

There is no error in the record, and the judgment of conviction is affirmed.

Affirmed.

On Rehearing. The only point raised by counsel for appellant in their application for rehearing is that it does not appear from the record that the defendant was present when the court made the order for the special venire to try the case and the order fixing the day for the trial of the case. By the provisions of the act of 1915 (Acts 1915, p. 708, amending section 6256 of the Code), it is not necessary that the transcript contain the order of the court for a special venire, or fixing the day for the trial of the defendant, unless some question thereon was raised before the trial court, which was not done. With the elimination of these orders, no question being raised as to the same having been done, it is difficult to understand just where or how it should appear in the transcript that the defendant was present when that was done, which the law prescribes should not appear, and presumes on appeal that such proceedings were regular and legal, in the absence of any question being raised.

The case of Sylvester v. State, 71 Ala. 17, was decided many years prior to the 1915 enactment, and cannot be questioned as to its correctness as applicable to what the transcript should contain at that time.

There being no question raised in the trial court, and the transcript appearing without the order of the court for a special venire or fixing a day for the trial of the defendant, the presumption is not only that such proceedings were had, but that they were regular and legal, and they certainly, could not have been regular and legal unless the defendant was present when they were made. Hardley v. State, 202 Ala. 24, 79 So. 362; Redman v. State, 8 Ala. App. 408, 62 So. 992.

Application for rehearing overruled.