Collins v. State

58 So. 80 | Ala. Ct. App. | 1912

PELHAM, J.

The indictment charged the defendant ivith an assault on one Jim Hawkins with intent to murder, the jury found the defendant guilty, and the court imposed a punishment of five years’ imprisonment in the penitentiary. From the judgment of conviction, this appeal is prosecuted by the defendant.

A plea in abatement Avas filed to the indictment, setting up (1) that a brotlier-in-la.AV of the party alleged to have been assaulted Avas a participating member of the grand jury that found and returned the indictment against the defendant; and (2) that the caption and indictment sIioavs on its face that it was preferred, not by the county court of Clay, but by the county court of Clay county. The statute does not disqualify a member of the grand jury by reason of relationship to a person against Avhom a crime has been committed.—Code 1907, § 7304. Nor did the common laAV make such a disqualification. See 20 Cyc. p. 1302, and cases cited under note 4. Besides, the objection wms not available by plea in abatement.—Acts 1909 (Sp. Sess.) p. 315, .§23.

Defendant’s pleas in abatement, setting up that the caption and entire indictment sIioavs on its face that it was preferred by the “county court of Clay county,” and not the county court of Clay, and that the indictment was not found by a grand jury organized in the county court of Clay, are without merit. The incorporation of the additional and surplus word “county,” following the word “Clay,” in the designation of the court on the margin at the head of the indictment, and on the margin at the head of the grand jury venire, would not be ground for an abatement of the indictment, when the record shows — as it does in this case — that the defendant was charged on a valid indictment found and presented by a legal grand jury into a court of competent jurisdiction, i. e., the county court of Clay, which was held at a time and place provided'by law, and presided •over by an officer designated by law.

The caption of an indictment is not merely the marginal statement on the head of the indictment and of the venire. “The caption of an indictment is that entry of record showing when and where the court is held, who presided as judge, the complete venire and indorsements, and who were summoned and sworn as grand jurors.”—Reeves v. State, 20 Ala. 33. See, also, Morgan v. State, 19 Ala. 558; State v. Murphy, 9 Port. 487; Quinn v. State, 49 Ala. 354; Perkins v. State, 50 Ala. 154; Gater v. State, 141 Ala. 10, 37 South. 692. These record entries may be looked to, to supply any defect or clerical error in the special caption or heading of an indictment.—Overton v. State, 60 Ala. 73; Gater v. State, supra. And an inspection shows the name of the state, county, court, and term in which and at which the indictment was preferred and a sufficient compliance with the provisions of the statute.—Code, § 7131.

The evidence showed that the injured party, Jim or J. M. Hawkins, while riding along a settlement road on his own premises Sunday afternoon, December 11, 1910, on horseback, was shot in the head, face, and arms by some one in ambush with a shotgun, being hit by more than 80 shot, No. 5 and No. 8, and was confined to- his house about two weeks as a consequence of the wounds received. Hawkins testified that, when the gun fired, he looked back and saw the defendant standing on the side of the road in the direction from which the shot came, working at a gun he held in his hands. Three other state’s witnesses, members of the family of the prosecuting witness, testified to facts tending to show that the defendant was the person who shot the party alleged to have been assaulted. The defendant denied the shooting, and introduced evidence tending to prove an alibi.

The question asked the assaulted party by the defendant, while testifying as a witness for the state, about a third party’s having shot at him some time before the assault in question by the defendant, was properly disallowed by the court. That some other person, in no. way shown to he connected with the commission of the offense for which the defendant was being tried, at some other place and time, had shot, or shot at, the party assaulted, was entirely irrelevant and immateral.—Walker v. State, 139 Ala. 56, 35 South. 1011.

There was no error in allowing the solicitor, in cross-examining the defendant’s witness Peters, to ask him if he was not connected with, or if he did not “belong to,” a certain faction, when ill will between the factions had been shown. It was permissible, as tending to show the witness’ connection with the defendant’s faction, as evidencing bias of the Avitness.

The question asked the witness Baker by defendant, to which the court sustained an objection, was palpably improper. The question lays no predicate for an impeachment. Besides, the question was asked when the witness was recalled after he had been examined, and Was a discretionary matter Avith the court-, and the court allowed the defendant to introduce in evidence the judgment of conviction against the witness in the defamation proceedings.

The court properly refused to alloAV the defendant to introduce in evidence the indictment and judgment of conviction against the prosecuting witness, Hawkins, showing he had been convicted and fined for an assault and battery on a third party. The offense of which the Avitness was convicted is not one involving moral turpitude, and could not be received for the purpose of impeaching the general character'or veracity of the witness. —Smith v. State, 129 Ala. 89, 29 South. 699, 87 Am. St. Rep. 47; Williams v. State, 144 Ala. 14, 40 South. 405..

It is competent to ask a witness if he thinks he knows the general character of a witness who has been previously examined, and there was no error in overruling the questions propounded to the witness Baker and Van Nichols because so framed.—White v. State, 114 Ala. 10, 22 South. 111.

The general charge was properly refused. “Jim Hawkins” and “J. M. Hawkins” are shown by the statements in the bill of exceptions to be the same person. At the heading to his testimony, it is set out that “Jim or J. M. Hawkins was sworn,” etc.

Refused charge No. 9 is argumentative. The correct legal principle embodied is covered by several of the given charges.'

Charge No. 16 bases an acquittal on a reasonable doubt growing out of a consideration of part of the evidence, and singles out and gives undue prominence to that part. This charge is also covered substantially by the given charges on alibi. '

Charge No. 15 invades the province- of the jury, in stating that the defendant has set up an alibi to the reasonable satisfaction of the jury.

Charge No. 11 is more than covered by given charge No. .12.

Charge 22 singles out and gives undue prominence to a part of the testimony. Charge A is more than covered by given charges 18 and 19.

There is no error shown by the record, and the case will be affirmed.

Affirmed.