63 So. 745 | Ala. Ct. App. | 1913
The defendant was convicted of forgery under an indictment following literally the code form. — Code, § 7161, form 61, p. 670. The defendant urges that the indictment in this form was insufficient or defective in that (quoting) “two distinct and separately indictable offenses are alleged in the indictment
A sufficient answer to this contention is found in the fact that the statute (Code, § 6909), defining the offense of forgery, for which the section (7161, form 61) now attacked was designed to furnish a form for charging the offense denounced, makes either of the acts set forth in the indictment forgery, and does not make one act, as here contended, two distinct crimes. — See, also, Code, § 7151; Shelton v. State, 143 Ala. 98, 39 South. 377.
Another objection to the indictment was that the caption of the one served on defendant did not show the organization of the grand jury. This is not necessary under the law. — Code, § 7131; Overton v. State, 60 Ala. 73. These are matters which properly appear only in the minutes of the court.
The defendant also undertook to set up by plea in abatement that the state’s material witnesses, upon whose testimony the indictment was found, were incompetent witnesses, alleging as the grounds of their incompetency supposed contradictory affidavits made by them. The plea was stricken on motion based on the ground that the plea was frivolous and set up no defense to the indictment. In this there was no error. Perjury on the part of a witness- — ^granting that the allegations of the plea showed this, though we are of opinion they do not — does not render the witness incompetent to testify. It is only a conviction for perjury that has this effect. — Code, § 4008.
The defendant filed a plea of former jeopardy, in which he set up in effect that at a prior term of the court he was arraigned on an indictment charging the
The court in its oral charge to the jury on defendant’s said plea of former jeopardy charged, among
The defendant made a motion supported by affidavit, to continue- the present case, and that upon two grounds: One was on account of the absence of four alleged material witnesses, three of whom, it expressly appeared from the affidavit, were non-residents of the state of Alabama, and consequently not subject to the jurisdiction and subpoena or process of the court; and as to the other of whom it is alleged in the'affidavit that his last-known residence was in Mobile, Ala., leaving the inference that his present residence, and whether it was in this state or not, was unknown. It does not appear from the affidavit and motion that a subpoena had been asked for and issued for the witness, or that such had been served, or could have been or be served, upon him. For aught to the contrary appearing, this witness was also beyond the reach of the court. In fact, defendant’s evidence on the trial showed he was. Clearly, the court was not in error in overruling, on the showing made, this ground of the motion for continuance.— Sanderson v. State, 168 Ala. 109, 53 South. 109; Redmond v. State, 4 Ala. App. 192, 59 South. 181. A defendant is entitled to a continuance, so as to have compulsory process for obtaining witnesses in his favor, as provided by section 6 of the Constitution, only when it appears that the witnesses are within the court’s jurisdiction; otherwise such process would be impotent and a continuance in order to grant it would be useless.— Walker v. State, 117 Ala. 85, 23 South. 670.
The other ground of the motion was to the effect that defendant, being without an attorney, had not been allowed sufficient time to prepare his own defense. This contention is without merit. It appears that at a prior
At the conclusion of the bill of exceptions and as a part of it, and just before the signature of the trial judge, we find this statement: “On the 22d day of May, 1913 [within the time for presenting the bill of exceptions], the defendant filed with me what purported to be a bill of exceptions, but it was of such a nature that I declined to sign it. At a later date the defendant presented to me an amended bill of exceptions. This I declined to sign. As the defendant had no counsel, I had the official stenographer to make a complete transcript of the proceedings of the trial on the plea of former jeopardy and on the trial of the plea of not guilty, and I now sign that transcript as a correct bill of exceptions in the case, which is done this the 1st of August, 1913, within 90 days of the time the first bill of exceptions was filed with me.” The case is submitted to us alone on the merits upon the record containing this bill of exceptions. We find, however, among the many and voluminous papers — 'briefs, motions, petitions, letters, etc. — accompanying the record, what purports to be a motion to establish here a bill of excep
We have carefully examined the record, containing this bill of exceptions, and are of opinion, not only that there is no merit in the exceptions reserved, that defendant was protected by the court in every legal right, and that he had a fair and impartial trial, -but also that he was (contrary to his complaint here) treated with due courtesy and consideration by the court and solicitor. The evidence of his guilt is, in our opinion, overwhelming; and yet he has enlisted on his behalf the sympathies of a number of philanthropic workers, who have visited the jail during his confinement, and who have, apparently at his instance, addressed to ns numerous written appeals in the shape of letters, begging for leniency and a reversal of the case here for a new trial below, intimating, as expressed by some, that he had not had “a square deal” on the former trial, basing their assertion, so far as appears, on mere hearsay. These communications have no place in this court, and are highly improper; but, believing the motives prompting them to have been sincere, and that they were not designed by the authors in any evil purpose to improperly sway or influence this court from the discharge of its duties, but rather originated in a misconception as to what those duties were, we shall take no action against the parties in the matter, except to give this warning and express our disapproval in this way of such appeals, and this with a hope of saving the necessity of
The defendant, after his conviction, made a motion for a new trial, which was overruled. We are without authority to review this action of the court. — Jones v. State, 104 Ala. 30, 16 South. 135; Knight v. State, 103 Ala. 48, 16 South. 7. We may add, however, that if we had such authority our opinion, as already indicated, is that the court did not err in this particular.
We have discussed all the points raised by the record which are insisted on in brief. Many irrelevant matters are there discussed, but are not presented by the record, and are considered. We find no error in the record, and the judgment is affirmed.
Affirmed.