Bramlett v. State

[INDICTMENT FOB MURDER.] 1. Sufficiency of transcript on change of venue. — If the defendant, after going to trial without objecting-to the sufficiency of the certified transcript on which he is to be tried, 'afterwards moves in arrest of judgment, because the transcript does not show the organization of the grand jury, by which the indictment was found ; and the court suspends action on the motion, until an amended transcript has been obtained, supplying the deficiency of the first, and then overrules the motion, — there is no error in this of which the prisoner can take advantage, (walker and Stone, JJ., holding, that the court had power thus to supply the defects of the transcript; and Kick, O. J., holding, that the defect was waived by the prisoner.) 2. Constitutionality of section 3615 of the Code. — Section 3615 of the Code, requiring the accused, after change of venue, to be tried on a certified copy of the indictment, isnot violative of any constitutional provision. 3. Sufficiency of verdict. — A verdict in these words, “We, the jury, find the defendant guilty of murder in the first degree, and assess capital punishment,” having been altered, at the suggestion of the court, so that the last clause read, “and that he must suffer death,” — held good and sufficient in either form.

From the Circuit Court of Benton, (now Calhoun.) Tried before the Hon. ‘William M. BROOKS. The prisoner, Larlcin Bramlett, was indicted at the fall term, 1853, of the circuit court of Cherokee, for the murder of Benjamin E. O’Bannon; was arraigned at the same term, and- pleaded not guilty. After several continuances, the cause was removed, on the application of the prisoner, to the circuit court of Benton, now Calhoun county, where a trial was had at the November term, 1857, which resulted in his conviction. The verdict of the jury, as appears from the bill of exceptions, was in these words: “We, the jury, find the defendant guilty of murder in the first degree, as charged in the bill of indictment, and assess capital punishment.” When this verdict was returned, “the court asked the jury, if they intended by their verdict that the prisoner should suffer death; and suggested that, if such was their verdict, they had better change it, so as to insert the word death, instead of capital punishment. Thereupon all the jury orally responded, that they had found by their verdict that the prisoner should suffer death; and forthwith struck out the words capital punishment, inserted the word death in the place thereof, and returned said verdict, so altered, into court. Said verdict was thereupon received hy the court, and ordered to be entered of record, [in these words :] ‘We, the jury, find the defendant guilty of murder in the first degree, and that he must suffer death.’ The prisoner objected to this; but the court overruled the objection, and the prisoner excepted.” The certified transcript, sent by the circuit clerk of Cherokee, to the court in which the trial was had, purported to contain “a full, true and complete transcript of all the orders and entries, as stated of record,” in the cause, “together with a true copy of the original bill of indictment”; but did not show the organization of the grand jury by which the indictment was found. The record does not show that the prisoner raised any objection, during the progress of the trial, to the sufficiency of the transcript; but the bill of exceptions states that, after conviction, he moved the court “to set aside the verdict, and ax*rest the judgment, on the following grounds: 1st, that the circuit court of Benton has no jurisdiction of the case; 2d, that no grand jury was summoned, charged and sworn, before and upon the finding of the indictment; 3d, that it does not appear by the record in said cause that any grand jury was ever summoned, charged or sworn, on or before the finding of the indictment; 4th, that the transcript of the record from the circuit court of Cherokee does not contain any caption of the grand jury who found the bill of indictment; 5th, that said transcript of the record is defective; 6th, that there is no bill of indictment, or properly certified copy of an indictment, in this court; 7th, that there is no legal evidence to this court that there is any bill of indictment against the prisoner; and, 8th, that the judgment is not authorized by law.” On the hearing of the motion, the prisoner produced the certified transcript, containing, the defect' above named, “which was the only transcript in the coui't; and thereupon the court refused to pass upon said motion, and suspended its j udgment, and ordered that the clerk of the circuit court of Cherokee be ordered to send down to this court a full and complete transcript in said cause; to all of which the prisoner objected, and excepted to the overruling of his objection.” On a subsequent day of the term, “and after the sentence of the court had been passed upon the prisoner,” the solicitor produced another certified transcript from the records of the circuit court of Cherokee, showing the organization of the grand jury i.n that court. “The defendant objected to the same, because, it was illegal and irrelevant; because it was no part of the records in this cause; because it was not a paper belonging to. this court; because it was not properly on file in this court; and because it was not made out, certified, or filed in this court, until after the trial of said cause, and after said cause was ended; and because the same was not properly certified. The court overruled all these objections; the transcript was re.ad, an.d the defendant excepted. The court then overruled the motion in arrest of judgment, and the defendant excepted.” 1. The verdict entered of record, is the verdict of the court, and not of the jury. The verdict of the jury had been brought into coui’t, and read; and it thereby became a part of the proceedings in the case. • If it was sufficient, there was no need to change it; if insufficient, there was no power to change it. 2. The motion in arrest of judgment ought to have been sustained. The court in which the trial was had, derived all its authority to proceed in the case from the certified transcript transmitted to. it from the court in which the indictment was found. That transcript was fatally defective, in not showing the organization of the grand jury by which the indictment was found. The court in which the indictment was found, would have no power to try the prisoner, if its records did not show that the grand jury was properly empaneled. The court to which the trial is removed, can only act on the record evidence which the statute requires. If the certified transcript may omit the facts showing the organization of the grand jury, and yet suffice to sustain the jurisdiction of the court; the copy of the indictment, or the order for a change of venue, may also be omitted. Nor can this defect be supplied, as was done in this case, by the production of another certified transcript subsequently made- out. The court has no authority to act, unless the evidence of its jurisdiction is before it at the time. To allow the subsequent production of another transcript, purporting to correct the deficiencies of the first, would make its jurisdiction depend upon the accident of its attention being called to its want of jurisdiction. The jurisdiction of a coui’t cannot rest on such an ex post facto proceeding. 3. Section 3615 of the Code, authorizing the defendant to be tried “on the certified copy of the indictment,” is unconstitutional. The 10th section of the bill of rights secures to him “the right to a copy of the indictment.” A copy of the certified copy is not a copy of the original indictment. Matters of form, in criminal cases,' are matters of substance. — 1. A motion in arrest of judgment, like a demurrer, extends only to defects apparent on the record. If the grand jury was not properly organized, the defect was only available by plea in abatement. — l Brevard, 169; 2 Stewart, 392, 454; 3 Ala. 378; 5 Ala. 72; 18 Ala. 550; 9 Porter, 370; Code, § 3591. 2. The transcript furnished by the clerk before the trial, is correctly certified. — State v. Brister, 26 Ala. 107; Harrell v. State, 26 Ala. 53; Ward v: The State, 28 Ala. 53. 3. The caption of the certified transcript sufficiently shows that the indictment was found by a grand jury properly organized. — Lapsley v. The State, 7 Porter, 527 ; Commonwealth v. James, 1 Pick. 375. 4. If the first transcript was insufficient, the defect was supplied by the one subsequently obtained ; and it was competent for the court, as well after as before conviction, to obtain an amended transcript, “not for the purpose of curing an original defect, but to make the return of the proceedings of another court conformable to what they really were.” — 1 Chitty’s Criminal Law, 336; 1 Saunders, 249; 3 Modern, 167; 2 McCord, 301; *4 Texas, 125; 1 Brevard, 169; 3 Zabr. 49; 28 Ala. 9; 13 Vermont, 647; 18 Vermont, 70.