Kirby v. State

59 So. 374 | Ala. Ct. App. | 1912

PELHAM, J. —

The appellant’s motion to quash the venire because the court failed to comply with the requirements of section 32 of the jury law (Acts 1909, p. 317) is not supported by the recitals of the judgment entry set out in the record; but, on the contrary, the judgment entry shows that the defendant and his counsel were present in open court on November 13th, when the order of the court was made fixing the number of jurors to constitute the venire for the trial of the case and setting the case for trial on November 15th.

The court’s order that the venire and a copy of the indictment should be served forthwith on the defendant is in strict compliance with the statute, and the judgment entry recites that the order of the court was complied Avith. The present jury laAV provides (section 32) that “a list of the names of all the jurors summoned for the AAreek in Avhich'the trial is set and those drawn as provided by this section, together Avith a copy of the indictment, shall be forthwith served on the defendant by the sheriff, and the defendant shall not be entitled to any other or further notice of the jurors summoned or drawn for his trial, nor of the charge or indictment upon Avhich he is to be tried.” This laAV being a general laAV, it repeals all other general laws that may be in conflict Avith it. — Patterson v. State, 171 Ala. 2, 54 South. 696), and consequently so operates on section 7840 of the Code, with Avhich it is in conflict, and it is therefore not a requisite of the laAV noAv in force that service of copies of the venire and indictment must be made on the defendant one entire day before the case is set for trial (Welch v. State, 1 Ala. App. 144, 56 South. 11.) It would not appear that any constitutional right to have a copy of the accusation against him was withheld from the defendant, as the judgment entry shows that the court on November 13th, the day the case was set for trial, ordered the jury lists and a copy of the indictment to be served on the defendant forthwith, and that this order was complied with, and that the defendant was not arraigned for trial until the second day thereafter, or November 15th.

There is no merit in the contention of the appellant’s counsel that section 32 of the present jury law (Acts 1909, p. 317) is violative of section 45 of the Constitution. The act in question relates to the jury system of the state, as indicated by its title, and the provisions of section 32 are clearly germane to the subject-matter of the act as indicated by its title.

The propositions above discussed are the only matters argued by counsel for appellant in brief, but we have considered all of the rulings on the evidence, and find no error prejudicial to the defendant in any of them. The court, in admitting in evidence a confession or incriminating statement made by the defendant, erroneously stated that whether or not such a statement is voluntary is a question for the jury to pass upon ; but no injury resulted to the defendant from this statement, as the confession or incriminating statement was shown to have been voluntary, and no objection or exception was reserved to the remark of the court.

The evidence was properly admitted, but the reason given by the trial judge in making the rulings, to the effect that the Supreme Court had held that it was a question for the jury to pass upon as to whether or not a confession is voluntary, is erroneous. The admissibility of the proposed evidence is always a question for the court. — Jones v. State, 156 Ala. 175, 47 South. 100; Fowler v. State, 170 Ala. 65, 54 South. 115; Bradford v. State, 104 Ala. 68, 16 South. 107, 53 Am. St. Rep. 24; 5th Mayfield’s Dig. p. 184, § 12.

The oral charge, taken as a whole, is a fair statement of the law applicable to the case, and if there was any ground, in the first instance, for the objection made to that part of the charge in which the court charged upon flight, the court, upon having its attention directed to the language used being susceptible of the construction that flight indicative of a consciousness of guilt had been conceded, corrected and explained the charge given, and stated that it was the defendant’s contention with reference to flight that he had “good reason” for the flight. The explanation could have left no other impression with the jury than that it was the contention of the defendant that the flight which he had admitted was not due to a consciousness of guilt.

Charge No. 1, requested by the defendant and refuséd by the court, does not state a correct proposition of law. If the act was committed by force, actual or legally implied, and against the consent of the woman, it would be rape, without regard to whether the defendant put the prosecutrix in fear of her life or great bodily harm in the accomplishment of his purpose. — Herndon v. State, 2 Ala. App. 118, 56 South. 85; Lewis v. State, 35 Ala. 380; Harris v. State, 2 Ala. App. 116, 56 South. 55.

Charge No. 2 singles out and misstates a part of the evidence, upon which an acquittal is predicated.

Charge No. 3 is involved and inconsistent, and not a succinct statement of any legal principle.

Charge No. 7 predicates an acquittal of every charge embraced in the indictment upon the statement of a condition which would only warrant an acquittal of the highest charge embodied in the indictment. While this charge is apparently in substance the same charge as was approved, in the cases of McQuirk v. State, 84 Ala. 455, 4 South. 775, 5 Am. St. Rep. 381, and Allen v. State, 87 Ala. 107, 6 South. 370, the question of the lesser offenses embraced in the indictment does not seem to have been under consideration in those cases; but in this case the evidence is such that the jury had before them, not alone the question of whether the defendant was guilty of rape, but also the question of whether he was guilty of a simple assault or an assault and battery, and the court in its oral charge charged at length on these offenses, and the charge in question is a positive instruction for an acquittal, unless the evidence is sufficient to show guilt of rape without regard to the lesser offenses, and the court cannot be put in error for its refusal.

Charge No. 8 is bad for the same reason assigned in discussing charge No. 7. This charge also uses the word “believe” instead of “convinced beyond a reasonable doubt.”

Charge No. 16 uses the words “reasonable apprehension” as applied to the apprehension of bodily harm that would constitute duress. The offense is complete when the woman is made to yield through fear, and does not consent voluntarily (Hooper v. State, 106 Ala. 41, 17 South. 679), whether or not the apprehension of bodily harm is reasonable (Waller v. State, 40 Ala. 325).

No reversible error appears from an investigation of the record, and the case will be affirmed.

Affirmed.