88 So. 197 | Ala. Ct. App. | 1921
It would be difficult to conceive of a fairer or more impartial trial than was accorded this defendant as shown by the record in this case. He was represented by able counsel appointed by the court to *686 defend him. The court through an abundance of caution declined to permit the state to introduce in evidence an alleged full confession by the defendant of the offense charged, notwithstanding the extensive and exhaustive predicate which was laid for this purpose by the state and which under the well-settled rule was in the opinion of this court amply sufficient for the introduction of the alleged confession made to the solicitor by this appellant and taken down in shorthand by the official court reporter and transcribed by him. The oral charge of the court was able, thorough, and extremely fair, and without error of any character.
This defendant, a young white man, just entering upon the threshold of life, was convicted of robbery and sentenced to 15 years' imprisonment in the penitentiary. And according to the contention of the state, which contention appears to be borne out by the state's testimony, the appellant committed a most bold and daring robbery upon one Mr. E.H. Moore, who at the time of the alleged offense was living at Edgewood, a suburb of the city of Birmingham, and about four miles distant. According to Mr. Moore's testimony, this appellant, accompanied by another and still younger white man, drove up in a taxicab to his (Moore's) house at about 10:30 o'clock at night, and the defendant having left the younger man in the car, with motor running and the lights on the car burning, went to Moore's front door and asked for him; that he (Moore) was standing by the fire with his wife, saw the defendant, and heard him ask the man servant if Mr. Moore was at home. The man servant pointed out Mr. Moore, who went at once to the door, and was then told by the defendant that two ladies were in the car and wanted to speak to him, whereupon he went with the defendant to ascertain what the ladies wanted. And he testified:
"When I stepped out of the house and walked to the edge of the porch, the defendant was trailing me. He was right at my heels, and I turned around and said, 'Where are the ladies in the car?' He pulled an automatic pistol, and said: 'You need not worry about that. Just walk on out. March!' And took me right off of the porch and said, 'Shell out.' I asked him what kind of a joke he was pulling, and then I saw they were in earnest. I looked back towards my house and could see my wife inside, and he said: 'Don't look in there. If you do, we will drop you right where you stand.' The pistol looked like an army pistol and to be about a 41 or 45 caliber."
The witness then stated that in this manner they took from him the money specified in the indictment, and then drove away in the car.
The principal insistence of error on this appeal is the action of the court in refusing to quash the venire. It would serve no good purpose to deal specifically with each of the questions presented, which have reference to this ruling of the court. Each of these questions have been carefully considered, and in this respect we pretermit the insistence of the Attorney General to the effect that —
"The several motions to quash the venire for the week and the venire for the trial of this case appear only in the record proper and not by bill of exceptions, in which it is insisted that an order denying defendant's motion to quash the venire of jurors on grounds dehors the record, and not shown by the bill of exceptions, cannot be reviewed."
Upon the merits we are clearly of the opinion that the rulings of the court upon the venire were free from error, and we think the utterances of the court in making these rulings are in point and his reasons are well stated as shown in the record. As stated by the lower court and many times so decided by the Supreme Court and this court, under the present statute no objection to an indictment on any grounds going to the formation of the grand jury which found the same can be taken to the indictment except by plea in abatement to the indictment which plea must be based solely upon the grounds that the grand jurors who found, and returned into open court the indictment, were not drawn by the officer designated by law to draw the same. Acts 1909, p. 305, § 23. And section 29 of said act expressly provides that no objection can be taken to any venire of jurors except for fraud in drawing or summoning the jurors. These questions were not presented, and the irregularities relative to the jury boxes, if such existed, could not be tested in this manner, but only by a direct proceeding in the nature of mandamus, or by impeachment proceedings against the jury commission or by some other procedure not here presented.
There was ample evidence upon which to submit the issues of this case to the jury, and, the evidence being in conflict, special charges 1, H, and I, requested in writing, each of which was the affirmative charge for the defendant, were properly refused.
The principles of law involved in refused charges C, D, and E, were fairly and substantially covered by the oral charge of the court. Moreover, under the evidence in this case these charges were abstract for the reason that the defendant was either guilty or not guilty as charged, and there was no evidence whatever upon which to predicate a verdict of any offense comprehended in the indictment other than the main charge, that of robbery, and for these reasons these charges could have been well refused.
The defendant refused to strike the number of jurors allowed him, whereupon *687 the presiding judge proceeded to strike the jury for him. This action of the court was in strict compliance to the terms of the statute, Acts 1919, p. 1039, § 32, and was therefore without error.
Nor was there error in the action of the court in causing the plea of not guilty to be entered for the defendant, he having refused or neglected to plead. Code 1907, § 7565.
The remaining questions presented relate to the rulings of the court upon the testimony. These rulings are so clearly free from error we see no necessity of dealing specifically with each of these rulings; there was nothing in any of them which could injuriously affect the substantial rights of the defendant.
The judgment of the circuit court is affirmed.
Affirmed.
