Dannelley v. State

130 Ala. 132 | Ala. | 1900

McCLELLAN, C. J.

Indictment assault with a pistol. Pleas not guilty, former jeopardy and former conviction. Defendant convicted. Bill of exceptions purports to set out all the evidence. Much of it on each of the issues was oral. After setting out the evidence, the bill of exceptions proceeds: “Thereupon the defendant among other charges ashed for the general affirmative charge, in writing, in his favor, on his plea of former conviction, and upon his plea of former jeopardy, which were refused by the court, and the defendant thereupon duly, legally and separately excepted to the court’s refusal to give each charge as requested.” This is the only exception reserved on the trial, and it is not stated otherwise than as we have copied it. The charges to the refusal of which the exception was taken are not set out in the hill of exceptions. We cannot review a trial court’s rulings upon charges requested unless the charges are transcribed into and made a part of the bill of exceptions: We cannot take any mere statement of what they were which falls short of giving their very language. The wisdom and necessity of this rule is demonstrated in this case. The “general affirmative charge,” strictly speaking, is without hypothesis and imperatively directs the verdict; but in the common parlance of the bench and bar a charge with hypothesis, “if the jury believe the evidence they will find” so and so, is also known as “the general affirmative charge,” though the phrase “with hypothesis” is often added, in naming such an instruction. Hence, it is that it cannot be said with certainty from the statement we have quoted whether the charges asked by defendant were with or without the hypothesis of the jury’s belief of the evidence.

As if to aid and perfect the bill of exceptions in the particular under consideration, somebody has pinned thereto a 'sealed envelope across one side of which is written: “Refused charges in State v. Bully Dannelley.” We cannot look to this envelope or its contents for any purpose; and it has not been opened.

The record proper of the trial court as shown in the transcript before us contains and sets forth three pleas, viz., not guilty, former conviction and former jeopardy. The judgment entry recites that “issue being joined on defendant’s plea not guilty, came a jury,” etc., etc. The bill of exceptions affirmatively states that issue was joined pn each of said pleas, and shows that the tidal was really had upon the pleas of former conviction and former jeopardy, the State not only not objecting thereto, but in fact aiding the defendant by admissions of fact tending to establish these special pleas. The judgment entry, though reciting issue joined on the plea of not guilty and not reciting the joinder of issue upon the special pleas, does not negative the joinder of issue upon tlie latter, and tlie recital it contains manifestly may be true, and yet it may' also be true that issue ivas joined on the special pleas. Hence, it cannot be said that the statement of the bill of exceptions, that issue was joined on the special pleas, nor the whole course of the trial as set forth in the bill of exceptions showing that the only issues really litigated were those presented by the special pleas, contradicts the recital of the judgment entry: The matter is to be regarded rather as a mere omission of the entry to recite all the. issues made in the case: And on this state of the record before us, the case is to be considered here upon the assumption that issue was joined on each of the pleas.—Brinson v. Edwards, 94 Ala. 447; Richmond & Danville Railroad Company v. Farmer, 97 Ala. 141; Andrews v. Birmingham Mineral Railroad Company, 99 Ala. 438; Comer & Co. v. Way & Edmundson, 107 Ala. 300; McLendon v. Grice, 119 Ala. 513.

The parties appear to have waived a separate trial on the special pleas. This was irregular but not vitiating. But even in a trial involving all the issues, the verdict must go first to the issues of- former jeopardy and former 'conviction. Tin' verdict here responds only to the general issue: The jury did not by their verdict expressly pass upon the issues of former jeopardy and former conviction presented by the special pleas. For this omission the judgment should be reversed on the authority of Dominick v. State, 40 Ala. 680, and Moody v. State, 6 Ala. 78. Such is the opinion of the writer and Haralson, J., but the majority of the court are of the opinion that in view of the recital of the judgment. entry above copied it must be held that the only issue in the case was upon the plea of not guilty, and, the jury having responded to this issue, that the judgment must be affirmed.

Affirmed.