Stanfield v. State

57 So. 402 | Ala. Ct. App. | 1912

PELHAM, J.

The defendants were jointly indicted and tried for an assault with intent to murder, and the jury returned a verdict finding the defendants guilty of an assault and battery, leaving the punishment to be fixed by the court. The court sentenced each of the defendants to hard labor for the county for six months, and an additional term to cover the costs of 'the prosecution at the rate of 40 cents per day.

The term of the circuit court at which the defendants were tried was authorized to continue for three weeks (Code, § 3235), and the record shows the trial to have been had during the second week. The defendants made no objection to being tried during the second week of the term, but counsel urge in their brief that the court committed reversible error in putting the defendants on trial during the second week of a term of court authorized to continue three weeks, because section 3248 of the Code provides, when the term of the court is for three weeks, the criminal docket shall be taken up on the third Monday of the term. The statute means only that the criminal docket shall be taken up, and criminal cases given preference over civil business during the week stipulated, and not that the court is without authority or warrant in law to try criminal cases during a prior week of the term. The identical question was raised in Goley v. State, 87 Ala. 57, 6 South. 287, and decided adversely to the contention made by defendant, in his brief. This ruling in Goley’s Case has been cited approvingly and affirmed in Hall’s Case, 130 Ala. 45, 30 South. 422, and Griffin’s Case, 165 Ala. 29, 50 South. 962.

It is also insisted by appellants that, the jury having assessed no fine, the court was without authority to impose a punishment on the defendants based on the jury’s verdict finding the defendants guilty of an assault and battery and leaving the punishment to the court. Section 7630. of the Code provides: “When an offense may be punished, in addition to a fine, by imprisonment or hard labor for the county, the jury shall not be required to impose a fine; but, if in their judgment the defendant should only be punished in some other mode, may, in such case, only find him guilty and leave the imposition of the punishment to the court.” The offense of which the defendants were convicted is one that may be punished, in addition to a fine, by imprisonment or hard labor for the county.—Code, § 6306. The verdict was sufficient to support the judgment of the court imposing a punishment of hard labor within the limitations provided.—Golson v. State, 86 Ala. 601, 5 South. 799.

It is the further contention of appellants in brief filed by counsel that the judgment does not affirmatively show that defendants failed to presently pay the costs or confess judgment for the same, and that the sentence therefore rendered against the defendants in lieu of their payment or securing the costs is erroneous. The judgment entry as to each defendant recites that the defendant, being asked by the court if he had anything to say why sentence should not be pronounced upon him, said nothing, and the judgment then recites, “It is therefore considered by the court, and it is the judgment and sentence of the court,” etc., that the defendant perform hard labor for the county for six months as punishment for the offense, and an additional term to pay the costs. The words, “It is therefore considered by the .court,” when followed by the proper statement in a judgment, have often been held to be a determination of the defendant’s guilt and a sufficient judgment of conviction'.—Shirley v. State, 144 Ala. 35, 40 South. 269; Talbert v. State, 140 Ala. 96, 37 South. 78; Roberson v. State, 123 Ala. 55, 26 South. 645; Driggers v. State, 123 Ala. 46, 26 South. 512; Wilkinson v. State, 106 Ala. 23, 17 South. 458; Gray v. State, 55 Ala. 86. If these words are a sufficient determination of guilt, certainly they are a sufficient determination, in the connection in which they are used, that the costs were not presently paid or secured. . As said by Denson, J., in rendering the opinion, of the court in Shirley v. State, supra: “The record fails to show a formal adjudication of the defendant’s guilt upon the verdict rendered by the jury. But the minute entry shows a judgment of sentence by the court in accordance with the verdict. It has been held by this court that this sufficiently implies the judgment of guilt and is a judgment of conviction which will support an appeal.” And in this case the record fails to show a formal adjudication that the costs were not presently paid or secured by a judgment of the court., but the minute entry' shows a judgment of sentence by the court in lieu of the costs having been paid or secured, and it will be held, following the authorities cited, that this sufficiently implies finding a judgment that the costs were not paid or secured.

The question asked one of the defendants when being examined as a witness about the assaulted party, Drake, having a pistol in his hand on an occasion of malting'threats at a time prior to and disconnected with the difficulty in question, falls within the rule prohibiting a party going into the details of a former difficulty.—Gordon v. State, 140 Ala. 29, 36 South. 1009; Harkness v. State, 129 Ala. 71, 30 South. 73; Stitt v. State, 91 Ala. 10, 8 South. 669, 24 Am. St. Rep. 853; Rutledge v. State, 88 Ala. 85, 7 South. 335; Lawrence v. State, 84 Ala. 424, 5 South. 33; McAnally v. State, 74 Ala. 9; Gray v. State, 63 Ala. 66.

The proposition advanced by counsel in brief, that the testimony of the defendant Stanfield as to the assaulted party having a pistol on different occasions than the assault in question was admissible as corroborative of the defendant’s prior testimony, is not tenable. A witness cannot corroborate his own testimony.—McKelton v. State, 86 Ala. 594, 6 South. 301; Green v. State, 96 Ala. 29, 11 South. 478; James v. State, 115 Ala. 83, 22 South. 565.

There was no error prejudicial to defendants committed by the court in permitting the state’s counsel to ask one of the defendants on cross-examination, against objection because the evidence required by the statute (Code, § 7600) to be reduced to writing was not produced, if he did not make certain statements on the preliminary hearing. The witness answered that he did not remember whether he made the statement asked about or not, and the investigation and inquiry ended there. It was not sought to contradict him ana show by secondary evidence whether he did or did not make the statement.

The question could have been asked to test the recollection of the witness, and the fact that the witness could not recollect whether he had made such statement was a circumstance not improper to be referred to by state’s counsel in argument as an independent matter, irrespective of whether the statement had or had not been made. No attempt was made to impeach the witness by the introduction of secondary evidence slioAving conflicting statements to have been made, and the objections taken cannot raise that inquiry.

Besides, it was held, in Harris’ Case, 73 Ala. 495, and Matthews’ Case, 96 Ala. 62, 11 South. 203, that, if the testimony is not reduced to. writing, the testimony may be proven by any witness aa71io heard it, and, while the presumption is that the' officer did his duty and reduced the evidence to Avriting, the statute (Code, § 7601) requires that he must deliver it to'the clerk or state’s counsel, and the counsel for the state made the statement in open - court, at the time objection was interposed, that"he had not seen such evidence, and that the evidence had not, to his knowledge, been reduced to Avriting. This statement that the evidence Avas not available to- the state was not challenged and might be deemed a sufficient showing to overcome the primary presumption of the officer’s having reduced the evidence to writing.

The witness Taylor, having testified on direct examination to the good character of Marvin Drake, the party assaulted, for peace and quiet, Avas cross-examined at length on his knoAvledge of a great many facts supposed to have transpired in the life of the assaulted party to test the extent and accuracy of the witness’ information. Some of the. questions to which objections were sustained are sIioavii to have been subsequently answered, others seek to go into the details of former difficulties between the defendants and the party assaulted, and a careful examination shows no well taken objection to the refusal of any proper question seeking legal evidence pertinent to the issue. While it is permissible, on the cross-examination of a witness who has testified to the good character of a party for peace and quiet, to interrogate him with reference to what he has heard of specified acts of violence committed by the party, the extent and range of such examination is largely within the discretion of the court, and no abuse of discretion is shown as to the cross-examination of the witness Taylor by the defendants—Clay v. Sullivan, 156 Ala. 392, 47 South. 153; Dilburn, Adm'r. v. L. & N. R. Co., 156 Ala. 228, 47 South. 210; Smiley v. Hooper, 147 Ala. 646, 41 South. 660; Rhodes v. Weeden & Dent, 108 Ala. 252, 19 South. 318; Tobias v. Treist & Co., 103 Ala. 664, 15 South. 914; Noblin v. State, 100 Ala. 13, 14 South. 767.

We have examined all the rulings on the evidence, and other questions raised by the record, and find no reversible error available to defendants.

The judgment sentencing the defendants to hard labor for the county in default of the payment of costs at 40 cents per day is erroneous, and should be a.t the rate of 75 cents per day, and the judgment will be here corrected in that particular, and as thus corrected will be affirmed.—Dowling v. City of Troy, 1 Ala. App. 508, 56 South. 118; Bradley v. State, 69 Ala. 318; Miller v. State, 77 Ala. 41; Vaughan v. State, 83 Ala. 55, 3 South. 530; Johnson v. State. 94 Ala. 35, 10 South. 667.

Corrected and affirmed.