Fuller v. State

97 Ala. 27 | Ala. | 1892

STONE, C. J.

— The indictment in this case was found and presented in court May 4th, 1888. The defendant, Ellis Puller, was let to hire to Alex Johnson by written contract, bearing date December 13, 1886. Puller was under sentence of conviction for three several misdemeanors, and the contract of his hiring was made through Livingston and Worthy, the authorized agents of the county for that service. The term for which Puller was hired was two years, six months and nine days, that being the aggregate of the three sentences to hard labor for the county which had been pronounced against him. Each of the three sentences under which Puller was let to hire was, that he should perform hard labor for the county for six months and twenty days, and an additional term not exceeding eight months for the payment of costs at 40 cents per day. The sum of the three sentences for the payment of the fines and penalties being twenty months, it follows that the aggregate of the three sentences to labor for the three bills of costs was ten months and nine days; much less than eight months in each case, if the costs were equally apportioned. The record fails to show that the defendant was sentenced to labor for a longer term than eight months for the payment of costs in either of the cases, embraced in the contract of hiring. And what we have said equally shows that the court in pronouncing the several sentences did not transcend the limits prescribed in § 4588, Code of 1886.

Several objections were raised in the court below, and are urged here for a reversal of the judgment rendered in this case. First, it is claimed that the offense — a misdemeanor —was barred by the limitation of one year before the prose.cution was commenced.

It will be remembered that the indictment in this case was found May 4, 1888. Taking this as the commencement of the prosecution, a year had not elapsed from the time the prisoner escaped from the hirer, which escape gave rise to the prosecution. The only testimony on this question was that of Johnson, the hirer. He testified “That the said Ellis Fuller worked with him, (the said Johnson,) until the twenty-first day of June, 1887, when he left him and never returned.” From June 21, 1887 to May 4, 1888 is less than a year.

It is further contended that the contract of hiring failed to express “the kind of labor, and the place at which it was to be performed” by the convict, as required by § 4597 of the Code of 1886. The contract is headed .“The State of Alabama, Pike County.” Johnson, in his contract, bound himself, among other things, “to keep said convict at hard labor, doing any kind of farm work in said county, on his premises.” This is a sufficient requirement of the statute.

It is further contended for appellant that the sentence, or sentences under 'which he was hired were illegal and void; that he was illegally let to hire, was illegally restrained of his liberty, and, as a consequence, he committed no breach of the law by escaping from such illegal restraint. The particular ground on which this contention is rested is, that the court which pronounced the three sentences, under which defendant was let to hire, did not refer to the provisions of § 4588 of the Code of 1886; did not order that the labor for the county directed to be performed under the second and third convictions, should “commence on the termination of the punishment for the preceding conviction,” or convictions, as the facts of the several cases presented themselves. Tbe judgments of conviction in tbe three cases are set out in the bill of exceptions, and they are silent on the question of time when labor should commence on any of the convictions. The several sentences were all pronounced on the same day — November 23, 1886.

We think there is nothing in this objection. Each of the three sentences was that the defendant should labor for six months and twenty days as punishment for the offense of which he was found guilty, and an additional term, not exceeding eight months, for the payment of costs. Only one witness speaks of the time of the escape; and when it took place the defendant had not served out either one of the sentences. The statute itself — § 4588 of the Code — declares the order in which the several sentences shall commence and be operative. We discover no imperfection, either in • the sentences of the court, or in contract of hiring.

Under, the law as declared above, the defendant was not entitled to the general charge in his favor. We may. add, that the request of the general charge is not shown to have been preferred in writing, and, if it were otherwise free from error, we would hold it was rightly refused. — 3 Brick. Dig. 109 § 40. The charge, however, is otherwise imperfect. Its entire lauguage is, “the defendant asked the court to give the jury the affirmative charge.” What the court was asked to affirm by the charge requested is not shown. It is imperfect.

Affirmed.