Stroud v. State

55 Ala. 77 | Ala. | 1876

BRICKELL, C. J. —

On a former day of tbe term, tbe Attorney-General applied for and obtained a certiorari, returnable instanter, for a more perfect transcript of tbe record. Tbe deficiency of which complaint was made, was tbe omission of tbe caption of tbe minutes of tbe Circuit Court, showing when ■ and where tbe court was held, at tbe term at which tbe indictment was found, and tbe organization of tbe grand jury; and also tbe omission of tbe caption of tbe minutes at the term at which tbe conviction was bad. Tbe original transcript purported to set out a full, true, and correct copy of tbe bill of exceptions, and no suggestion was, or has been made, that it was in any respect incorrect. In answer to tbe certiorari, a full a.nd complete transcript has been returned, curing tbe defects to which tbe Attorney-General directed attention, and purporting to embody a correct copy of tbe bill of exceptions. There is a manifest variance between tbe bill of exceptions as found in tbe two transcripts — one or tbe other is incorrect. Tbe bill of exceptions, as found in tbe original transcript, recites tbe charge given by tbe court of its own motion, and states: “ To tbe latter portion of said charge, tbe defendant, by bis counsel, excepted.” Tbe charges given by tbe court, at tbe request of tbe defendant, are then stated, and tbe bill of exceptions proceeds: “To so much of tbe charge as commences with the words, ‘but, if tbe jury believe,’ on tbe fourth line from tbe bottom of tbe preceding page, tbe defendant, by bis counsel, then and there excepted.” The bill of exceptions, as found in tbe transcript returned on certiorari, sets out the charge given by tbe court, ex mero motu, and then states: “ To so much of tbe charge as commences with tbe words, ‘if tbe jury believe,’ on tbe fourth line from tbe bottom of the preceding page, tbe defendant, by bis counsel, then and there excepted. To tbe latter portion of said charge, tbe defendant, by bis counsel, excepted.” Tbe charges given at the request of tbe defendant are then set out, as in tbe bill of exceptions found in tbe first transcript.

We deem it proper to say, it is tbe duty of clerks correctly to transcribe bills of exceptions, as they are of file. They can not be changed,- in form, or structure, or in language. If tbe bill of exceptions, as it is of file, conformed to tbe bill found in tbe first transcript, stating, after tbe general charge of tbe court, tbe exception, “ To tbe latter portion of said charge, tbe defendant, by bis counsel, excepted;” then stating the charges given at, tbe request of tbe defendant, and then reciting tbe remaining exception, it was tbe duty of tbe clerk so to transcribe it in tbe record sent up on certiorari. If tbe bill of exceptions set out in tbe first transcript did not conform to tbe bill as it is of file, suggestion of tbe fact should have been made to this court, and a certiorari obtained for a true and correct copy of the bill. The clerk was without authority to make the amendment or correction.

2. Exceptions can not be entertained, unless presented with reasonable certainty. These exceptions are too vague and -indefinite, and do not with reasonable certainty point out the parts of the charge against which they are directed. Take the first exception: “to the latter portion of said charge the defendant, by his counsel, exceptedwhat part of the charge is embraced by it ? Is it the last sentence, or the last paragraph ? As the charge is found in the transcript, it is divided into two paragraphs, the first of which consists of several sentences, and the second of two. The first of these is a 'mere statement of the proposition the counsel for the defendant had submitted. To this proposition the court assents, but affirms, in answer to ’ it, that a party provoking an assault, can not justify on the ground of self-defense. If we regard the exception as referring to the entire paragraph, or only to the last sentence, there is no error in it of which the appellant can complain. If the charge was abstract — if no question of the right of self-defense was involved, the argument of defendant’s counsel invited the charge, and the defendant can not complain that it did not pertain to the case.

The other exception is of greater uncertainty. The part of the charge to which it refers can not be ascertained, unless the clerk should so frame the transcript that the fourth line of the page, preceding the exception, should contain the words of the charge quoted in the exception. The duty of rendering the exception certain, can not be delegated to the clerk, nor made to depend on his discretion in making up the record.

3. As we understand the charge of the court, it is not erroneous. If the defendant carried the pistol concealed, not because he had been threatened with, or apprehended an attack, but with the view of using it in an attack he intended to make, or a difficulty he intended to provoke, he can not relieve himself, because he may have been threatened with, or'had good reason to apprehend an attack. The motive,, the purpose of carrying the weapon, must have been defense against violence which has been threatened, or which is reasonably apprehended. If this is not the motive — if offense, not defense, is the real purpose; though facts may exist, which would justify the carrying the weapon concealed, the statute is violated. Otherwise its purpose, to avoid interfering with the right to stand ready for defense, against all apprended attack, will be defeated, and it will become tbe shield of preparation for the gratification of malice and revenge.

There is no error in the record, and the judgment must be affirmed.