Hubbard v. State, 72 Ala. 164

BI1T0KELL, C. J.

1. Jt was matter of discretion in the Circuit Court to order the summoning of any number of jurors for the trial of the accused, if, including the regular juries for the week or term, the number was not reduced below fifty, or did not exceed one hundred. — Code of 1876, $ 4874. The exercise of the discretion is not revisable on error.—Blevins v. State, 68 Ala. 92.

2. The only evidence of the authenticity of an indictment, which is required by the statute, is the indorsement of the foreman of the grand jury. The indorsement of the clerk, showing its filing in open court, may be made at any time while the cause is injieri.—Clarkson v. State, 3 Ala. 378; Mose v. State, 35 Ala. 421; Wesley v. State, 52 Ala. 182. The indictment bears not only the indorsement of the foreman of the grand jury, but also the indorsement of the clerk, showing the day of its filing in open court; and the motion to quash it was properly overruled.

3. Whether the accused should have been permitted to withdraw the plea of not guilty, and interpose a plea in abatement because she was incorrectly named in the indictment, rested in the discretion of the court below, and its action is not revisable.

4. It does not appear that it was shown, as a fact, tha,t there was the asserted variance between the original indictment and the copy served on the accused. The copy was not produced and identified, so that it could be compared with the original. But, if the variance in fact existed, it was immaterial. The statute requiring that the name of the prosecutor shall be indorsed on the indictment, or, if there is no prosecutor, that it shall be so indorsed, is merely directory, and the omission does not affect the sufficiency of the indictment. While it is the duty of the clerk to furnish, for service on the accused, an exact and literal copy of the indictment, with all its indorsements, the omission of an indorsement not a part of the indictment, not entering into its sufficiency, is not an irregularity or error, which can be of prejudice to the accused.—Ezell v. State, 54 Ala. 165.

2. The venire in a capital case can not be quashed, because of mistakes in the names of the persons summoned as jurors, or because of discrepancies in their names between it and the ■copy served on the prisoner’.—Code of 1876, § 4876; Hall v. State, 51 Ala. 9.

6. Whether the child was born alive, and, of consequence, the subject of criminal homicide, was a question of fact for the .determination of the jury, in view of all the circumstances of fhe case. We do not perceive any just objection to the statement of the witness Ligón, that, he examined the body of the child, and considered it fully developed. The appearance of the body of the child — whether it was fully or partially developed — was matter of observation, and of fact. If the accused desired to ascertain what meaning the witness attached to the term fully developed, that could have been elicited on cross-examination. — 1 Brick. Dig. 874, § 995.

7. Instructions requested, based, partly or entirely, on a state of facts of which there does not appear to have been evidence, should, for that reason, even though they may state correct legal propositions, be refused. — 1 Brick. Dig. 338, § 41. Such instructions, if they have any effect, can serve only to confuse and mislead the jury. There was not the slightest evidence, tending to connect any other person than the accused with the death of the child, or with the concealment of its body. It is obvious, if tiie instructions requested bad been given, they would have been an invitation to the jury to pass beyond the evidence, into mere speculations and conjectures as to the complicity of some imaginary person in the crime.

8. The bill of exceptions recites, that it contains “ substantially all the evidencie,” and is silent as to any evidence showing the offense was committed in the county of Colbert. No question appears to have been made in the Circuit Court as to the venue of the offense. No instruction was given, or was requested, upon that point; nor was the attention of the court ■directed to the want, if there was a want, of evidence showing that the locality of the offense was in Colbert county. In Frank v. State (40 Ala. 9), C. J. Walkkk dissenting, it was ruled, that if aii exception was reserved to the conviction and sentence, the judgment of conviction would on error be reversed, if the bill of exceptions, purporting to set out all the evidence, failed to show the venue was proved, though no charge involving its proof was given or refused. In Clark v. State (46 Ala. 307), and Childs v. State (55 Ala. 28), it was held error, to refuse an instruction that the defendant could not be convicted, when the bill of exceptions set out all the evidence, and there was a want of evidence of the venue. So, there are numerous cases, asserting that a judgment of conviction will be reversed, because of instructions given which authorize a conviction without proof of the venue.—Sparks v. State, 59 Ala. 82; Gooden v. State, 55 Ala. 178; Bain v. State, 61 Ala. 75. In Riddle v. State (49 Ala. 389), a judgment of conviction seems from the very meagre report to have been deemed erroneous and reversible, where the bill of exceptions professed to contain all the evidence, and was silent as to the venue, though no exception of any kind was reserved. In Williams v. State (54 Ala. 131), and Sampson v. State (Ib. 241), we held that, whether the evidence was in any respect sufficient for conviction, could be presented only by an exception to the rulings of the court on the evidence. With the mere question of the sufficiency of the evidence to support a verdict, this court can not interfere, unless it was decided by the court below, and the decision made the subject of an exception at the appropriate time.—Skinner v. State, 30 Ala. 694. If there had been an instruction given or refused, involving an inquiry iiito the sufficiency of the evidence to authorize a conviction, the omission of evidence of the venue would have compelled a reversal of the judgment of conviction, in obedience to the authorities we have cited. But no such instruction having been given Or refused, this court can not now interfere. It does not lie within our province to grant new trials, in cases civil or criminal, because the verdict and judgment may not appear affirmatively to be supported by the ¡evidence.

We find no error in the record, prejudicial to the accused, and the judgment must be affirmed.

Case Details

Case Name: Hubbard v. State

Court Name: Supreme Court of Alabama

Date Published: Dec 15, 1882

Citation: 72 Ala. 164

Court Abbreviation: Ala.