63 So. 21 | Ala. Ct. App. | 1913
— The defendant was indicted for murder. On August 22, 1912, the same term of the court at which he was indicted, he was duly arraigned, and then and there .pleaded not guilty to the indictment; whereupon the court set August 27, 1912, as the day for the trial of the case, and proceeded in all respects as required by law to draw a special jury of 40 persons, which, with the regular jurors (36 in number) drawn and summoned for the week of the trial, were to and did constitute the list from which the jury was to be selected for the trial of the case. On August 27, 1912, when the case was called for trial, the defendant asked leave to withdraw his plea of “not guilty”' (which he had interposed, as said, on his arraignment five days before) and to file a plea in abatement, setting up in effect that the
Among the alleged errors we are called on to review is that of the court in striking the plea in abatement. Whether it was meritoriously done or not, we need not consider, since we are of opinion that the court was without authority in the first instance to permit the interposition of the plea at the trial, when the defendant had previously, on his arraignment, pleaded not guilty. We are aware of the general rule that the trial court ordinarily has the power, which it may exercise in its sound discretion, to allow a party, who has not pleaded in the order required by the rules of pleading, to withdraw pleading already filed, for the purpose of filing other pleading which should have preceded in point of filing that which is allowed to be withdrawn; and this rule would obtain here, but for the fact that in this instance the Legislature by express statutory provision, mandatory in terms, has seen fit to withdraw that power from trial courts. Section 28 of the jury law (Acts Sp. Sess. 1909, p. 315) provides, among other things, as follows: “Any plea in abatement to an indictment must be filed at the first term at which the indictment was found, if the accused has been arrested, or, if the accused has not been arrested, such plea in abatement must be filed at the first term at which it is practicable after defendant has been arrested, and in all cases such plea in abatement must be filed before the plea to> the merits ” The last clause — the part italicized — is applicable'here, and renders nugatory the act of the trial court in per-
The question, “What did Pearce say?” propounded by the solicitor to the state’s witness Delmar Sciverly, called for and elicited evidence clearly admissible as a part of the res gestee, if not also otherwise admissible. — 1 May. Dig. pp. 772, 773; Blount v. State, 49 Ala. 381. Pearce, referred to in the question, was jointly indicted with defendant, and, though not himself on trial, the
The court committed no error in overruling the motion of the defendant to exclude the whole testimony of the state’s witness Will Turner. The sole ground of the motion was that the testimony of the witness did not show that defendant had any connection with the difficulty at all. It often happens, and is most frequently true, that the state is unable to prove its whole case by a single witness; but this fact does not render the whole testimony of the witness inadmissible, if it relates a single material fact in the case of the state. Other witnesses for the state did connect the defendant with the commission of the crime.
The defendant offered to prove by one witness that deceased at the time he was killed, on account of family troubles, was living separate and apart from his wife. The defendant’s counsel insists that such evidence was relevant as a circumstance which the jury might consider as tending to show that the deceased, during the fatal difficulty, was in a reckless state of mind on account of his family troubles — although the difficulty was not had with any member of his family, and was not about or in any way connected with such family troubles, but arose out of the fact that defendant’s brother, Pearce, was imposing on or hectoring deceased’s younger brother, an epileptic, who called on deceased for assistance. The mere statement of the contention is sufficient for the legal mind to see, without the necessity of discussion, that the action of the court, in declining to permit evidence of the troubles of deceased with
The defendant requested in writing* a number of charges, which were refused; but the bill of exceptions nowhere shows that these refused charges were requested before the jury retired. They cannot, therefore, be reviewed; since it will be presumed in favor of the ruling of the trial court, when the record does not show to the contrary, that the charges, if good, were refused because not requested before the jury retired.—Donahoo & Mathews v. Tarrant, 1 Ala. App. 446, 55 South. 270; 2 May. Dig. p. 576, § 26.
We have discussed the only errors urged, we find none in the record, and the judgment of conviction is consequently affirmed.
Affirmed.