B. Foster, Judge. Charlie Culpepper was charged with murder in the first degree, convicted of murder in the second degree, and he appealed. The record must affirmatively show that the defendant was present when the order was made fixing a day for the trial and ordering a special venire. 71 Ala. 17; Acts 1915, p. 708. The case cited by appellant has no application to the instant ease. The rule has been entirely changed by Acts 1915, p. 708; 202 Ala. 24, 79 South. 362.
Good law ✅— No negative treatment on recordhow we know
Affirmed · Decided 1920-06-29
How this case has been cited
Cited by 3 later decisions — most recently January 1994
3 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶2[2] 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.
¶3The case of Sylvester v. State, 71 Ala. 17, was decided many years prior to the 1915 enactment, and cannot he questioned as to its correctness as applicable to what the transcript should contain at that time.
¶4There 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 South. 362; Redman v. State, 8 Ala. App. 408, 62 South. 992.
