41 So. 413 | Ala. | 1906
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The demurrer to the defendant’s plea of former jeapordy was properly sustained. The indictment set out in this plea, on which it is alleged that the former jeapordy is predicated, shows on its face that it was insufficient to support a judgment of conviction. In Oakley v. State, 135 Ala. 15, 33 South. 23, it was said of a similar indictment that it was had because it did not charge whether the person assaulted was over or under 10 years of age, and therefore failed to show whether defendant was charged under § 5447 of the code of 1896 as for a felony, or under S 5448 of the code of 1896 as for a misdemeanor. Jeapordy will not .arise on an indictment insufficient in law to support a judgment of conviction.
The act creating the office of supernumeary judge was held in Whatley v. State, 144 Ala. 68, 39 South. 1014, not to be unconstitutional.
Therefore the objection of the defendant based on the supposed unconstitutionality of the act was without merit.
The motion to quash the indictment contained five grounds, but we need only refer to the fifth ground, as this was the only one attempted to be proven. In support of this, ground, the defendant introduced in evidence a copy of the oath of office and the dueling oath taken and subscribed by one of the commissioners. This was all, except a statement that no other oath was on file in the office of the probate judge; the theory of the defendant being, and such is the insistence in argument, that the
A similar motion was made to quash the special, venire; that i.s, that the jury commissioners failed to take the oath prescribed in § 4977. The same evidence was offered that was offered on the motion to quash the indictment. The regular jurors forming a part of the special venire were-drawn by the jury commissioners, no fraud is charged in the drawing, and the commissioners are the officer's designated by law, and whose duty is it, to draw the juries for the term of the court. We cannot see that a failure to take the prescribed oath should invalidate a subsequent act regularly done in the performance of a duty required by statute. The purpose? of the oath prescribed is to impress and enjoin upon the commissioners the faithful performance of their duty in drawing juries, and it is not pretended that the commissioners did not faithfully perform their duty; There was no error in overruling the motion . See Spraggins v. State, supra; § 4977, Cr. code 1896.
There was no error in permitting Mrs. Fonder, the mother of the child alleged to have been assaulted, to testify as to the time of the alleged assault, although the date fixed by the witness was different from that fixed by the child, who- had previously testified in the case. The jury might have found tliat the child was mistaken in the time she fixed. There was no pretense that there was but the one assault. Nor was there any error in permitting Mrs. Fowler to testify, against the objection of the defendant, that Ida Fowler, the girl alleged to have been assaulted, seemed excited and looked like she had been crying. On this point the cases of Gassenheimer v. State, 52 Ala. 317, and Johnson v. State, 17 Ala. 623, have been departed from in the later cases of Hainsworth v. State, 136 Ala. 13, 34 South. 203, and Tagert v. State, 143 Ala. 88, 39 South. 293.
The court, against the objection of the defendant, permitted the witness F. W. Walker to testify that J. W. Sims, the father of the defendant, tried to get the witness to offer the state witness Morgan $50 to leave Cordova; the purpose being to get this witness away, so that he might not testify in the case. It was not shown that this was done by the procurement of the defendant, or with his knowledge or consent. In this ruling the trial court was in error.
We fail to see any relevancy in the testimony of the witness Mrs. Brazil as to the defendant’s cursing and abusing her and striking her with a stick of wood, a short wiiile before the time that it was said, the offense charged in the indictment was committed. Such evidence, it could well be said, might have a tendency to create a prejudice in the minds of the jury against the defendant. There was no connection between the offense charged and the treatment by the defendant of the witness as testified to. The evidence should not have been admitted. — Fonville v. State, 91 Ala. 89, 8 South. 688.
The defendant, on the cross-examination of the state’s witness Morgan, having called for statements by witness that the witness on the night after the alleged offense was committed ran away from Cordova and wmnt to Louisiana, where he was gone a month and ivas brought back by the sheriff, it was permissible for the state to show on redirect examination of this witness wiry he went away.
It is the right and duty of the court in the administration of the law to maintain its dignity, and to this
When an exception is taken to a part of the oral charge of the court, the portion so excepted to must be bad as a whole; else the exception is unavailing.
Written charges 2 and 3, refused to the defendant, find substantially duplicates in several of the many charges given by the court at the defendant’s request, and for this reason, if no other, were properly refused.
Charges 13 and 14, refused to the defendant, incorrectly stated the evidence. There was evidence by Mrs. Fowler that the private parts of Ida were not only red, as if they had been pinched, but appeared to be bruised. The father of the child testified that her private parts looked like they had been “mashed.” These charges were, therefore, properly refused.
Charge 22 was misleading and otherwise faulty, and was properly refused. Charge 23 was the genera] affirmative charge to find for the defendant. There was evidence tending to support the indictment, and the charge was properly refused.
There was no error in giving written charges 1, 2, and 3, requested by the state. These charges correctly state the law. For the errors pointed out, the judgment must be reversed, and the cause remanded.
Reversed and remanded.
