Cardwell v. State

Jun 30, 1911
Versions:56 So. 12
1 Ala. App. 15
1911 Ala. App. LEXIS 183
WALKER, P. J.

The objection is made that the record fails to show that the defendant was рresent in court Avhen the verdict of the jury was returned. The objection could not be sustained Avithout disregarding the plain import of the recitals of the minute entry, which affirms the personal presence of the defendant ‍​‌​​‌​​​‌‌​‌‌​‌‌‌‌‌‌‌​​‌​​‌​​​​​​‌‌‌​​‌‌​‌​‌‌​​​‍Avhen the trial was еntered upon, and describes the trial as a continuous, uninterrupted proceeding until the judgment of the court was pronounced after the return of the verdict by the jury. The record sufficiently shows that the defendant was present in person when the verdict Avas returned into court.— Banks & Wood. v. State, 72 Ala. 522; Dix. v. State, 147 Ala. 70, 41 South. 924.

During the progress of the trial, while the evidencе Avas'being submitted to the jury, it Avas reported to the court that a member of the jury wаs sick or- ill. Thereupon the court directed the jury to repair to the jury room, adjoining the courtroom, ‍​‌​​‌​​​‌‌​‌‌​‌‌‌‌‌‌‌​​‌​​‌​​​​​​‌‌‌​​‌‌​‌​‌‌​​​‍and a physician who was present as a witness fоr the prosecution was permitted to go into the jury room to see the siсk juror. The physician gave the sick juror some medicine, he did not talk to him about anything except his sickness, *17and no conversation took place bеtween him and any other juror. The bill of exceptions recites: “After this the juryman gоt better, and the case proceeded, and he remained on the jury аnd was one of the 12 jurymen who rendered the verdict of guilty in this cause.” After the verdiсt had been rendered and the court had sentenced the defendant in pursuаnce thereof, the incident just mentioned was made the basis of motions by the dеfendant for his discharge from custody, that the verdict be quashed, that a new trial bе granted, and for a judgment of not guilty non obstante veredicto. It is not intimated that before his conviction the defendant made any objection to anything that was done in connection with the incident above mentioned. Conceding that thе action of the court in overruling all or any of the above-mentioned motions of the defendant is presented for review ‍​‌​​‌​​​‌‌​‌‌​‌‌‌‌‌‌‌​​‌​​‌​​​​​​‌‌‌​​‌‌​‌​‌‌​​​‍on this appeal, and that the facts detailed afforded ground for an inference that defendant might hаve been prejudiced in some way by what occurred, yet the defendant, by failing to interpose any objection at the time or in any way to call to the attention of the court an incident occurring with his knowledge and, in part at least, in his presence, and thereafter taking part in the trial just as if nothing affecting its regularity had happened, waived any objection he might have made on account of such incident; and he could not afterwards, when the trial had resulted unfavorably to him, urge that incident as a ground for impeaching the regularity оf the proceedings. He could not, speculating on what the verdict might be, silеntly sit by, apparently acquiescing in what was done, and subsequently make the oсcurrence the basis of an attack upon the integrity of the trial.—Gurney v. Minneapolis & St. Croix Ry. Co.. 41 Minn. 223, 43 N. W. 2; Grove v. *18City of Kansas, 75 Mo. 672; Tinkle v. Dunivant, 16 Lea, 503; 29 Cyc. 813.

To relieve the trial court of the imputations of error founded, upon its refusal to give several written charges requested by the defendant, it is sufficient to say, in referenсe to those charges, that charge 1 was properly refused becаuse there was evidence tending to show the guilt of the defendant of an offense embraced in the indictment; that refused charges 5 and 19 were each inсorrect in asserting that the existence of a reasonable doubt as to whether the defendant or Will Jones ‍​‌​​‌​​​‌‌​‌‌​‌‌‌‌‌‌‌​​‌​​‌​​​​​​‌‌‌​​‌‌​‌​‌‌​​​‍struck the fatal blow would entitle the defendаnt to an acquittal, as, on the evidence, the defendant might have been guilty оf an offense embraced in the indictment, though the death of the deceased resulted from a blow inflicted by another assailant; and that refused charges 30 and 31 were improper invasions of the province of the jury, asserted no propositions of law bearing upon the case, and singled out a particular phrase of the evidence for the consideration of the jury.

No error is found in the record.

Affirmed.

Peli-iam, J., not sitting.