Green v. StateGreen v. State
Pennington & Tweedy, of Jasper, for appellee.
Fox Case, supra, which was based upon Davis v. State, 188 Ala. 59, 66 So. 67, which decision declared the charge bad for that, it pretermitted a consideration of the evidence, similar charges have been up for consideration many times, among these cases being, Caldwell v. State, 203 Ala. 412, 84 So. 272; Rikard v. State, 209 Ala. 481, 96 So. 412; Riley v. State, 209 Ala. 505, 96 So. 599; Whittle v. State, 213 Ala. 301, 104 So. 668; Burkett v. State, 215 Ala. 453, 111 So. 34; Jones v. State, 16 Ala. App. 7, 74 So. 843; Green v. City of Demopolis, 20 Ala. App. 115, 101 So. 529; Wilson v. State, 20 Ala. App. 137, 101 So. 417; Grimsley v. State, 20 Ala. App. 155, 101 So. 156; Gilchrist v. State, 20 Ala. App. 307, 101 So. 634; Hill v. State, 21 Ala. App. 310, 107 So. 789; Humber v. State, 21 Ala. App. 378, 108 So. 646. Many more cases of like import could be cited showing that the only vice of the charge here refused was that it was not predicated on the evidence. And, while the charge met with some criticism in Edwards v. State, 205 Ala. 160, 87 So. 179, as stating a requirement less favorable to defendant than one to which he was entitled, the charge was not for that reason condemned. The charge in the instant case meets every criticism condemning it, except the phrase in the Buckhanon Case, supra, and that part of the Buckhanon opinion was not based upon authority cited, and has never since been cited or alluded to. It is true that Mr. Justice Somerville, writing in the Edwards Case, supra, expressed the view that the charge was less favorable to the defendant than if otherwise expressed, but the charge was not condemned for that reason. The charge does correctly state the law, and “must be given or refused in the terms in which they are written.”
Refused charge not numbered, but which for convenience we have marked “B,” tends to be confusing, and, if for no other reason, the charge was properly refused.
For the error pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
BRICKEN, P. J.
It appears from the record that this cause was tried and determined in the lower court on December 10, 1929, wherein the plaintiff (appellee) was awarded $400 as damages suffered as a result of a collision between appellant‘s truck and the automobile of appellee. On February 2, 1930, an appeal was taken to this court, and the cause here submitted on November 28, 1930. The submission was upon “motion and merits.” The motion by appellee to affirm the judgment in the lower court is predicated upon several grounds, but the first ground thereof is sufficient of itself and necessitates the granting of the motion to affirm. This ground as stated is: “Because there are no assignments of error in the record as the law requires.” Investigation discloses that no error has been assigned. The failure of appellant to assign errors requires the affirmance of the judgment of the lower court, from which this appeal was taken. Williams v. Ensley Motor Co., 19 Ala. App. 57, 94 So. 812; Supreme Court Rule 1; Nichols v. Hardegree, 202 Ala. 132, 79 So. 598, and cases cited.
Motion granted, judgment affirmed.
Affirmed.
Charlie C. McCall, Atty. Gen., for the State.
SAMFORD, J.
This defendant was jointly indicted with one Sam Simmons. On the trial of Sam Simmons this defendant testified in behalf of the state, at which time he was instructed by the court as follows:
“Mr. Green, you don‘t have to testify in the case as to any matter that might tend to incriminate you in regard to any offense charged against you; and any testimony that you voluntarily give in that respect will be used against you on the prosecution of your own case against you.”
On the trial of this defendant and after the corpus delicti had been proven, the state was permitted, over the objection and exception of defendant, to introduce in evidence the testimony of defendant given on the trial of Sam Simmons and containing inculpatory statements against him. This testimony was transcribed and identified by the court stenographer who had taken and transcribed it.
Inculpatory statements voluntarily made by defendant are admissible against him. Cauley v. State, 14 Ala. App. 133, 72 So. 271; Coplon v. State, 15 Ala. App. 331, 73 So. 225. Such inculpatory statements therefore, appearing in the transcript of the testimony in the Simmons Case voluntarily given by defendant, was admissible in evidence against him. It was also proper for the whole testimony to be placed in evidence. Burns v. State, 49 Ala. 370; 1 Mayfield Dig. 207 (7).
The statements of the solicitor to which exceptions were reserved are within the limits of legitimate argument.
We find no error in the record, and the judgment is affirmed.
Affirmed.
On Rehearing.
Our attention having been called to the sentence imposed, the court ex mero motu places the cause on the rehearing docket for further consideration.
Being unable to reach an unanimous conclusion, this court on March 12, 1931, propounded to the Supreme Court the following inquiry:
“To Honorable Jno. C. Anderson, Chief Justice, and Associate Justices
“Greetings:
“The Judges of this Court being unable to reach an unanimous conclusion in cases of 6 Div. 894, Morris Green v. State, regarding the sentence imposed in said case and in similar cases now pending in this Court and acting under authority of Section 7311 of the
Code of 1923 propounds to the Supreme Court the following question:“When a defendant has been convicted of grand larceny should he be sentenced under
section 5207 et seq. orSection 5265 of Code 1923?“In this connection we call your attention to the following decisions of this Court on the question involved. Salter v. State, 17 Ala. App. 517, 85 So. 847; Abrahams v. State, 18 Ala. App. 252, 89 So. 853; Farley v. State, 20 Ala. App. 105, 101 So. 69; Conner v. State, 20 Ala. App. 613, 104 So. 554; Lockett v. State, 22 Ala. App. 642, 119 So. 245; Shearls v. State, 23 Ala. App. 211, 123 So. 104; Jones v. State, 23 Ala. App. 384, 125 So. 898.
“All of which is respectfully submitted.”
To which the Supreme Court makes the following reply:
“Thomas, J.
“The question propounded for decision is as follows:
“When a defendant has been convicted of grand larceny should he be sentenced under
section 5267 et seq. orsection 5265 of Code 1923?“The two statutes,
section 5267 , et seq. andsection 5265 , Code of 1923, present a conflict as to the place (whether by imprisonment or hard labor, in cases indicated in the decisions by the Court of Appeals) of pun-ishment for the time indicated. The Act of 1919, p. 148, as codified, section 5267 , Code, et seq., providing for the indeterminate sentence, is the last specific expression of the legislative will in respects indicated on the point at issue and should be followed by the trial courts in the imposition of sentences in designation of the place of their service. Bibb v. State, 83 Ala. 84, 92, 3 So. 711. See, also, Ex parte Thomas, 113 Ala. 1, 21 So. 369; Robinson v. State, 6 Ala. App. 13, 14, 60 So. 558; Ex parte Robinson, 183 Ala. 30, 63 So. 177; Simmons v. State, 22 Ala. App. 126, 113 So. 466.“The Court of Appeals has properly applied the statute in the cases cited in the foregoing interrogatory.
“Anderson, C. J., and Sayre and Brown, JJ., concur.”
It follows, therefore, that the sentence to hard labor in this case is erroneous. For that reason the judgment of affirmance is set aside, and the judgment of conviction is now affirmed, and the cause is remanded for proper sentence.