Grantham v. State

Apr 3, 1917

4 Div. 504.

Reporters:: , ,
Before:: Brown

BROWN, P. J.

[1] The defendants were jointly indicted, tried, and convicted of grand larceny. The verdict of the jury was in ‘these words:

“We the jury find the defendants guilty as charged in the indictment.”

On this verdict the court rendered a judgment, jointly adjudging the defendants guilty, and separately sentenced each of the defendants to a term of two years in the penitentiary as a punishment for the offense. The offense for which the defendants were indicted was joint and several and the proceedings of the trial court are free from reversible error. Newman v. State, 160 Ala. 102, 49 South. 786; White v. State, 12 Ala. App. 160, 68 South. 521.

“So far as the costs, are concerned, the satisfaction of execution against either * * * will work a satisfaction as to both. This should have been made clear in the judgment.” Newman v. State, supra.

[2] The jury was not authorized to fix the penalty against the defendants. This was fixed by the court, and each of the defendants was separately sentenced for a fixed term as a-punishment for the offense. This distinguishes this case from Perry v. State, 149 Ala. 40, 43 South. 18, where the judgment was reversed because the verdict was void.

[3] There is an exception to the hearsay rule that allows utterances, otherwise inadmissible, to be received in evidence for the purpose of identifying the time of an occurrence of aiding the recollection of the witness. Wigmore’s Evidence, §§ 416, 17.91. And this rule justified the court in overruling the objection to the question to the state’s witness X T. Ross, if he did not hear of the loss of the belt by Bullock after he met the defendants and Smith on the road near Bullock’s place. Furthermore, the fact of the loss of the belt by Bullock was not disputed. The disputed fact was whether the belt found in the possession of the defendants was Bullock’s belt.

[4] On cross-examination the witness X T. Ross- testified, in response to questions put by the defendants’ counsel, that he was a witness on the preliminary trial of the defendants, and that it was his best recollection that he testified on that trial that he met the defendants and Smith on the road on the 11th day of the month. It was not improper for the court to allow the solicitor to ask on the direct examination, if witness was sure that he fixed that particular date, or if he remembered distinctly that the 11th of the month was the date he fixed in his former testimony. Furthermore, the witness adhered to the statement brought out by the defendants on cross-examination.

[5] The question to the witness Rob Ross and to which the court sustained the objection of the solicitor called for a repetition of the testimony of this witness that was before the jury, and the objection was properly sustained. Newman v. State, supra.

[6] The questions to the witness Rogers to which objections were sustained were objectionable as calling for the conclusion of’ the witness.

[7] There was evidence tending to connect the witness Smith with the crime, as a confederate of the defendants, and it was permissible for tbe solicitor to ask tbe witness on cross-examination if he did not take the belt. AVhite v. State, supra, and authorities cited therein.

We find no error in the record, and the judgment of the circuit court is affirmed.

Affirmed.