Smith v. State

76 Ala. 69 | Ala. | 1884

SOMERVILLE, J.

— The indictment charges that the defendant, “ having the legal custody of one William T. Owens, who w'as convicted of embezzlement, and duly sentenced to hard labor for Pike county, negligently suffered the said Owens to escape.” It substantially pursues the language of section 4126 of the Code (1876), which applies to any officer or person having the legal custody of a convict, and strictly follows the form of indictment prescribed for such cases by the statute, as found on page 996 of the Code, and numbered 44.

The statute requires that the court of County Commissioners shall determine whether convicts shall be employed in laboring on the public works of the county, or shall be let to hire to some other person or corporation ; and this decision is required to be entered on the records of the court.- — Code, 1876, §4469. And if the court determine to let the convicts, or any of them, to hire, they are empowered to “ do so by themselves, or by some member of their body, or other person to be appointed by them.” — Code, § 4469.

The records of the Commissioners Court, which were introduced in evidence upon the trial of this cause, show with sufficient certainty a substantial, if not strict compliance wdth this requirement of the law, and specify the names of the agents selected to carry out the order of the court by taking bids for the hiring. This we conceive to be the only jurisdictional requirement. We can perceive no reason why the bond, signed by the defendant and his sureties, should not be admitted in evidence against him, to establish all of the facts recited in it. This bond is one which the statute required to be taken, payable to the county, and to be signed by the hirer, with two good and sufficient sureties. — Code, § 4470. It is, therefore, an admission, of the facts recited in it, of a most solemn character.

It is said that there is better evidence of these facts than this written admission under seal made by the defendant, because the act approved February 22d, 1883, regulating the hiring and treatment of convicts, provides for the keeping of a record of these facts. Section 18 of this act makes it the duty of the Probate Judge to keep a well-bound book, in which he shall “ enter the name of each convict sentenced to hard labor for the county, the date of hire, the name of the hirer, the place where the convict is to labor, the length of the sentence, and the sum for which said convict was hired.” — Acts 1882-3, p. 139, § 18. It is manifest that the act of hiring does not derive any legal validity from the entering of this memorandum upon the record, nor would such hiring be vitiated by its entire omission from the record. The entry is intended as a mere memorial of antecedent facts, being open to inspection by the public for their convenient information. It is no part of the facts to be proved, but collateral and subsequent to them. Where this is the case, the facts may be proved by any other legal medium of proof besides the record. — 1 Greenl. Ev. § 86'. The statute, in like manner, requires all marriage licenses to be recorded in a book kept in the Probate Court, with a certified statement of the names of the parties, and of the time and place of the celebration of the marriage ceremony ; yet it has never been supposed that the fact of marriage, with its incidents, can not be established by oral or other legal evidence than the record, or a certified copy of it.- — Code, 1876, § 2680 ; Langtry v. State, 30 Ala. 536 ; 2 Brick. Dig. p. 70, § 24 ; 1 Greenl. Ev. 107.

There was no error in admitting in evidence the bond executed by the defendant, which was at least prima facie evidence of the facts stated in it. The charge of the court, that the defendant was estopped from denying these recjtals, if erroneous, was without prejudice to the defendant, inasmuch as he introduced no evidence seeking to controvert them, or assail their truth ; and the uncontroverted facts of the case would have justified the court in charging the jury to find the defendant guilty, if they believed the evidence, if this charge had been requested by the State.

The facts in evidence showed a clear case of escape, and we can discover no error in the charges or - other rulings of the court.

The judgment must be affirmed.