Appellant, on September 14, 1962, was indicted for robbery. He was apparently then in Kilby Prison.
He claimed (in a written motion to dismiss the indictment) that "on to-wit, September 15, 1962," he made a written demand on the then solicitor that he be brought to trial. See Ex parte State, ex rel. Attorney General, 255 Ala. 443, 52 So.2d 158.
The motion to dismiss was filed June 9, 1965, and the Circuit Court heard evidence thereon July 8, 1965. This evidence has not been sent up in the record before this court on appeal under Act 525, September 16, 1963.
July 29, 1965, the Circuit Court — again reciting that the evidence of both defense and State had been considered — overruled the motion to dismiss. (R. VIII.)
October 6, 1965, Foster was tried and convicted on the indictment. November 9, 1965, he appealed and prayed for a pauper's transcript. The transcript deposited by the court reporter with the circuit clerk embraces only the evidence taken on the trial before the jury October 5, 1965, et seq.
Under Code 1940, T. 15, § 389, we are enjoined to search the record without presumption — either for or against the prisoner or the prosecution.
Thus we find here a ruling on a constitutional right, i. e., of speedy trial. The ruling itself came from the consideration of evidence. Hence, we are unable to pass on this ruling without the evidence on the motion.
Under Griffin v. People of the State of Illinois,351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, our Legislature passed the poor prisoner's transcript statute, Act 525, supra. See Birdsell v. State, 41 Ala. App. 418, 133 So.2d 692, and Sanders v. State, 42 Ala. App. 419, 167 So.2d 174.
The submission is set aside and the cause is remanded to the Circuit Court for certification of the court reporter's transcript of evidence on the motion above referred to. This will be taken up under Supreme Court Rule 48.
Remanded.
JOHNSON, J., dissents.