39 So. 220 | Ala. | 1905
— The defendant moved to quash the indictment because the record did not show an organization of the grand jury. Court had been in session several days and the clerk had ample time to have written up the organization of the grand jury and the judge ought to have required him to do so. Paragraph 8 of section 934 of the Code of 1896 says it is the duty of the clerk “To keep a book, in which must be entered, .the minutes of each day’s proceedings during the term of the court, and the orders and judgments, in the order in which they are made or rendered.” Section 2641 says, “The minutes of the court must be read each morning in open court, and, on the adjournment of the court, must be signed by the judge.” The law certainly contemplates that the clerk shall write up the proceedings of each day and read the minutes the next morning in open court in order that the judge can .determine the correctness of the entries. This action is directed by law and a compliance therewith tends to keep down dis
It appears from the record in the ease at bar, that this case was tried at the term the indictment was found and though the organization of the grand jury was not recorded at the time the motion Ayas made, that it Avas written up before the court adjourned for the term. It is settled law that the judgments of the court are under the full power of the court during the term of the rendition.—Neal v. Caldwell, 3 Stewart, 134; 3 Mayfield’s Dig. p. 1160, § 675. It follows that the court had judicial knoAvledge, or in fact actual knowledge of its orders and judgments rendered during the term and it was sufficient if the entries Avere made before the court adjourned. —15 Ency. Pl. & Pr. 205-6- and cases cited.
Another ground of the motion Avas that one of .the grand jurors, Hunt, Avas a resident of another county. There was no proof of this averment and Ave can presume that the judge ascertained that the grand jurors possessed the legal qualifications to serve, before organization. But the presumption is needless in this case as the bill of exceptions recites the fact.
After the first indictment Avas quashed and the defendant was arraigned under the neAV one, the action of the judge Avas eminently correct in draAving another venire. We do not think the defendant can complain because the trial judge did not put upon him a venire that AAras draAvn out of the box previous to the return of the indictment under which he was tried.
The defendant before entering upon the trial moved to quash the venire, because no copy Avas served on him or his counsel as required by law, and becaues the copy ser
Tbe. trial court did not err in overruling defendant’s objection to witness Wright, “How came you to tell me
Defendant objected to the evidence of McCluskey, “Deceased usually carried his bill book in his inside breast pocket.” This court seems to have become committed to the proposition that a witness can testify to the habit or custom of another.—Naugher v. State, 116 Ala. 463, 23 South. 26; Wiley v. State, 99 Ala. 146, 13 South. 424. This is true when such custom or habit is known to the witness testifying.
The state’s theory was that the defendant killed deceased in order to get certain papers he held against him and which were in the bill book referred to, and that said book was found in the road and that it must have been extracted from the pocket of the deceased, and was therefore relevant.
The defendant also objected to testimony of Avitness McCluskey,. “I don’t remember ever seeing Snow carry his bill book in his overcoat pocket.” The record sIioavs that this was said upon cross-examination, and so far as we knoAV many have been in response to defendant’s question.—Tolliver v. State, 94 Ala. 111, 10 South. 428.
The court did not err in overruling the defendant’s objection to evidence of witness Holiday and Washburn as to buying corn from defendant. The. evidence showed that the deceased had a mortgage on his crop, that said mortgage was in the bill-book aDd the fact that defendant had been selling or trying to sell the corn, was a circumstance to increase his motive or desire to get the mortgage from the deceased.
The evidence of the witness Amos was properly admitted. The statement ivas made by the defendant, not as a confession but as an explanatory statement to his bother. The witness Amos testified it was voluntary and the record does not show that it ivas made in response to any question propounded by the said Amos. On the other hand the defendant’s, brother was with them and the defendant, had been taken to the barber shop by Amos at his request in order that he might talk with his brother.—Jones v. State, 137 Ala. 12, 34 South. 381; Christian v. State, 133 Ala. 109, 33 South. 64; White v. State 133 Ala. 122, 32 South. 139.
The court did not err in excluding the evidence of witness Price, that defendant was following Snow’s buggy, “in a gait in which a man would ordinarily follow a runaway team.” In the first place it was the mere opinion of the witness. Second, It was permitting the defendant by his own speed of locomotion to make evidence for himself.—Pate v. State, 94 Ala. 14, 10 South. 665.
Charge. 2 was-argumentative- and was properly refused, as was the case with charge 1. Charge 3 lias often been condemned.—Eggleton v. State, 129 Ala. 129, 30 South. 582. Charge 4 was properly refused. It singles out and gives undue prominence to one phase of the case. Charge 5 Avas bad.. It Avas misleading ,and the jury might infer therefrom, that the court was holding that the evidence was Ayeak and insufficient, and it was not the duty of the court to pass upon the weight and sufficiency of the evidence. Charge 6 was árgumentativ'e. Charge’7 Avas bad. It tends to mislead the jury to the conclusion that any evidence, tending to show innocence' would be sufficient to create a reasonable doubt of guilt. Charge 8 was good and should have been given. Charges 9 and 10 were argumentative and were properly refused.
Reversed and remanded.'