50 So. 194 | Ala. | 1909
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
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-
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
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
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,
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.