Phillips v. State, 50 So. 194

Phillips v. State

50 So. 194 | Ala. | 1909

DENSON, J.

A judgment may be amended at a subsequent term, nunc pro tunc, and pending an appeal therefrom; and the amendment, being properly certified to the court, will relate back to the rendition of the original judgment and be considered as curative of the defects in the record as it originally appeared in this court.. Seymour & Sons v. Thomas Harrow Company, 81 Ala.250, 1 South. 45; Independent, etc., Co. v. American etc, Co., 102 Ala. 475, 481, 15 South. 947. It is also settled by the decisions of this court that a judgment entry may be amended nunc pro tunc upon entries on the dockets,, as quasi record evidence. — Farmer v. Wilson, 34 Ala. 75. By the light of the decisions cited, it will be seen that the demurrer to the motion to amend the judgment was-, properly overruled. The judgment as amended has been properly certified to this court by the clerk of the circuit-court, in his return to the certiorari, and it- must be considered as the true entry.

The statute under which the special venire was formed provides that, when the day set for the trial is a day *20of a subsequent week of tlie term, tbe special jurors drawn by the presiding judge, together with the jurors drawn for such subsequent week, shall constititte such venire. — Code 1907, § 7265. The statute is an amendment to the former statute (section 5005 of the Code of 1896) in the particular that the former prescribed that the jurors drawn and summoned for the subsequent week should be a part of the special venire. Under the statute as it stood in the Code of 1896, the name of the jurors drawn for the subsequent week, but not summoned, could not properly be placed upon the list of jurors served upon the defendant, and the placing of such names on the list constituted sufficient ground for quashing the special venire. — Smith’s Case, 133 Ala. 73, 31 South. 942. It must be conceded that the order in the instant case is not in conformity with the statute; and probably the presumption should be indulged that the sheriff, in making his list of the names that were served upon the defendant, conformed to the order of the court (Spicer’s Case, 69 Ala. 159) and included only the names of jurors drawn and summoned. If he did conform to the order, then he left off of the list the name of O. B. Martin, who was drawn as a juror for the second week, but who was returned as not summoned, because he had moved out of the county. If Martin’s name had been included in the list, and he had appeared, he would not have been a competent juror; and, he having removed from the county, the sheriff properly returned him not served.

By section 6261 of the Code of 1907, this court is required to “consider all questions apparent on the record or reserved by the bill of exceptions, and render such judgment as the law demands. But the judgment of conviction must not be reversed because of error in the record, when the court is satisfied that no injury re-*21suited therefrom to the defendant.” Upon the facts relating to the point under consideration, the court is satisfied that no injury resulted to the defendant from the making of the order with respect to the special venire.

The name of S. P. Burrow appears in the venire facias for petit jurors for the second week, which venire is set out in the record, but it appears there only once; while in the sheriffs return upon the venire, which is also set out in the record, that name appears twice — thus, “S. P. Burrow, S. P. Burrow.” This the court regards as a self-correcting clerical error, involving no prejudicial effect upon defendant. The error may be that of the sheriff, in making the return, or may be that of the clerk in making the record. At any rate, it is self-correcting and harmless to defendant.

Motion to quash the venire is based upon two grounds. First, for that “the list of' jurors served on the defendant is not certified, by the clerk, or any one else, to be a correct- list of jurors to try the case;” second, “because the clerk did not sign the notice at the head of the list of jurors, giving notice to the defendant that the list-served would constitute the venire from which to draw the jury.” There is no law imposing the duty assumed in the motion, upon the clerk or any one else. Consequently the motion to quash is without merit.

The proof of the defendant’s guilt depended upon circumstantial evidence. After witness A. J. Browning had testified to circumstances tending to show that the person who killed the deceased did so from ambush, and after describing the place of the killing and its sur- • roundings, and after testifying to finding there human tracks peculiarly marked, and to tracing these tracks up to within a short distance of defendant’s house, and that he had seen defendant make tracks in a cotton *22patch two or three clays before the deceased was killed, he was asked by the solicitor to describe “these tracks made by the defendant in this cotton patch.” The defendant made a general objection to the question and excepted to the overruling of the objection by the court. Aside from its positive vice of generality, the objection is without merit, for the reason that the evidence sought and obtained was entirely competent to go to the jury, upon the question of whether or not the tracks found at the place of the killing were made by the defendant. Hence the court committed no error in overruling the objection to the question, nor in refusing to exclude the answer thereto. — Walters’ Case, 118 Ala. 654, 24 South. 1005; Hodge’s Case, 97 Ala. 37, 12 South. 164, 38 Am. St. Rep. 145; Riley’s Case, 88 Ala. 193, 7 South. 149; Busby’s Case, 77 Ala. 66.

The court committed no error in sustaining the state’s objection to the question propounded to the witness Carter on cross-examination.

The letter of July 28, 1908, written by the' defendant to the clerk of the circuit court, was properly received as evidence. The testimony showed that the deceased, Yan Wright, was a witness in a criminal prosecution that was pending against defendant, and that defendant was anxious to dispose of Wright, or of his testimony. The letter, in connection with other evidence, tended to show defendant’s disposition towards Wright, and motive to kill Wright. It may be that it was slight in its tendency and weight; but nevertheless it was competent.

The evidence showed that on the Sunday morning after Yan Wright was killed (the killing occurring on S'aturday), but before his body was found, the defendant boarded the east-bound train at Wadley, “and left the community,” carrying a suit case and a gun case. Miss McGinty, a witness for the defendant, testified *23that she lived in the town of Langdale, in Chambers county, Ala., and that she knew the defendant. Defendant’s counsel then asked Miss McGinty this question: “Did he have an engagement to visit you on the Sunday he was arrested?” The purpose of the testimony sought to be elicited by the question, it may be conceded, was to explain the testimony tending to show bight; but the court cannot be put in error for sustaining the objection to the question. For aught that is revealed by the question or what had preceded the asking of it, the defendant may have had an engagement to visit the young lady, and yet the engagement might have been made after defendant reached Langdale; and if so, it is obvious that the testimony in answer to the question would have been wholly immaterial and irrelevant. Where a question is so general that irrelevant evidence .would be responsive to it, the trial court cannot be put in error for sustaining an objection thereto. —Ross’ Case, 139 Ala. 144, 147, 36 South. 718. There was no offer, before the court ruled, to show that the engagement was made before defendant started from Wadley. Moreover, at the time the question was propounded to the lady, there was no proof, nor offer to prove, that Phillips went to Langdale, nor that he had •started to Langdale, or in the direction of Langdale.

The recital as to what the evidence- of Bell showed — construing the bill of exceptions most strongly against the defendant (McGehee’s Case, 52 Ala. 224) — occurred after the question was propounded and ruled upon. The court has examined the portions of the general charge of the trial court excepted to, and has found no reversible error therein.

Charges 9, 8, 20, and 23 are of the same class, and may be considered together. The reasons of their condemnation may be found in the cases cited below, and it is unnecessary -now to repeat them. — Thomas’ Case, *24106 Ala. 19, 17 South. 460; Bowen’s Case, 140 Ala. 65, 69, 37 South. 233; Turner’s Case, 124 Ala. 59, 27 South. 272; Barnes’ Case, 111 Ala. 56, 20 South. 565; Bohlman’s Case, 135 Ala. 45, 33 South. 44; Dennis’ Case, 112 Ala. 64, 20 South. 925.

Charge 19 is argumentative and misleading, and the trial court therefore cannot be put in error for refusing it.

No effort was made to impeach witness A. J. Browning, nor can it be said, from the evidence disclosed by the record, that the guilt of the defendant was dependent upon his testimony. Hence charge 14 was properly refused to defendant. — Jackson’s Case, 136 Ala. 22, 34 South. 188.

In refusing charge 26 no error was committed by the trial court. — Rogers’ Case, 117 Ala. 9, 15, 22 South. 666 (ch. 7); Amos’ Case, 123 Ala. 50, 54, 26 South. 524 (ch. 4); Neville’s Case, 133 Ala. 99, 32 South. 596; Allen’s Case, 111 Ala. 80, 89, 20 South. 490.

This record affirmatively shows that charge 6 requested by defendant was “accidentally misplaced,” thereby not only negativing any purpose to withhold it without action thereon, but affirmatively showing that no such purpose existed. Moreover, construing the bill of exceptions most strongly against the defendant, according to the rule (McGehee’s Case, supra), defendant’s counsel may have been the person who found the charge; and, if so, there was ample time, as shown by the record, within which he could have called the attention of the court thereto, before the jury rendered the verdict; but, aside from this condition of the record, the charge is argumentative and might properly have been refused.

There is no reversible error, and the judgment is affirmed.

Affirmed.

Dowdell, C. J., and Simpson and Mayfield, JJ., concur.