Viberg v. State

138 Ala. 100 | Ala. | 1902

TYSON, -J.

In Haley v. The State, 63 Ala. 89, it Avas held that the averment of the name of the defendant under an alias cliclus was proper. In that case, the Christian name of the defendant was averred under an alias, while in this ca.se the surname of the defendant is so averred. If proper in the one, it is necessarily proper in the other. It was unnecessary to repeat the Christian name, before the surname Verberg. To have done so, would not have made the averment plainer. It would simply have been a mere repetition. The demurrer to the indictment Avas properly overruled.

What was said between defendant and Thomas, from whom it is alleged the money was stolen, from the time of 1 heir meeting at the bank until they reached the place where the larceny Avas committed, being part of the transaction Avhieh culminated in the commission of the ojffeuse, Avas clearly admissible as part of the res gestae. Churchwell v. The State, 117 Ala. 124.

The evidence in behalf of the State tended to proAre that- after the defendant acquired the possession of the money and gave it to the negro, Avhom the jury was authorized to find Avas his accomplice, he ran rapidly away in one direction, while the negro ran in an opposite one. It was shown that defendant and Thomas were strangers. It was, therefore, entirely competent for the solicitor to show by Thomas that when he next saw defendant, after the larceny, he was under the circus tent and under arrest. This evidence was competent for the purpose of identifying defendant and also had some bearing on the question of flight. — Bell v. The State, 115 Ala. 25, 38-9; Koch v. The State, Ib. 99.

On cross-examination of defendant as a witness, he was ashed, “Were yon not connected with the circus that was here that day?” No objection was interposed to this question until after defendant had answered, “yes.” But had it been timely interposed, we apprehend there would have been no merit in the objection. For it is always competent to show by a witness his occupation and residence.

Nor can tbe objection to the question propounded to defendant, as a witness, on cross-examination: “Have you ever been in Montgomery before?” be of any avail. If error was committed in allowing the question to be asked, which we do not concede, we cannot conceive how it could possibly prejudice the defendant. For the same reason, the question asked defendant if he resided in Alabama must be held to have been innocuous.

The prosecution was allowed to introduce in evidence, against the objection of defendant, the record of his former conviction of petit larceny. The record showed that he had taken an appeal, in that case, to this court, and we may assume, if that were important, though not affirmatively shown by the record before us, that the execution of that judgment had been suspended as required by section -1319 of the Code. Section 1795 of the Code provides that: “No objection must be allowed to the competency of a witness because of his conviction for any crime, except perjury or subornation of perjury; but if lie has been convicted of other infamous crime, the objection goes to his credibility.” • It cannot be doubted that a judgment of conviction is necessary, before the provisions of the-statute can be availed of. — Clark’s Man. Crim, Law, § 2437; Powell v. The State, 72 Ala. 194. Nor can it be seriously doubted that petit larceny is an infamous crime and that a conviction for that offense goes to the credibility of the person convicted as Avitness. — Sylvester v. The State, 71 Ala. 17; Smith v. The State, 129 Ala. 89. This seems to be conceded, but it is insisted that the appeal to this court and the suspension of the judgment operated to annul the judgment of conviction. Clearly if this is true, then the judgment of conviction was improperly admitted in evidence. On the other hand, if it is not true, but the execution thereof Avas simply suspended pending the appeal, the ruling of the trial court Avas proper. At common law the judgment of conviction would have disqualified the Avitness. Sylvester’s case, supra. This disqualification or disability can' be removed in two ways; first, by a reversal of the judgment, and second, by a pardon. Until one of these modes ha,d been sucessfully resorted to, the convicted person continued to be infamous and the disability created by the judgment of conviction Avas still upon him. — 1 Greenleaf on Ev., § 377, .and note. The point under consideration Avas directly presented and decided by the Supreme Court of Missouri in’ the case of Ritter v. The Democratic Press Company, 68 Mo. 458. In that case the Avitness had been convicted of obtaining money under false pretenses, but had appealed his case to the Supreme Court and obtained a supersedeas. Pending the appeal and a suspension of the judgment, he Avas offered as a Avitness, but Avas excluded. The court, after quoting the statute disqualifying the witness, said: “The only question is whether Saunders, sentenced as he has been to the penitentiary, though he had appealed to this court, Avhere the judgment was reversed, was at the time he Avas offered as a Avitness, a competent one. We think the circuit court properly excluded him. He was convicted of a crime which disqualified him as a Avitness, and the subsequent reversal of that judgment by this court, could not be anticipated by the circuit court.” Although the court does not in express terms hold that the judgment of conviction was not annulled by Saunder’s appeal, yet,, it is clear that this is the principle underlying the decision. Under our statutory system,'a mere appeal does not, in any case, operate to suspend a final judgment or decree. In civil -cases, in order to prevent tlie enforcement of tlie judgment or decree, where an appeal is taken therefrom, a supersedeas is necessary. And doubtless, if it were not for the provisions in the statutes making it mandatory on the court in criminal cases, when defendant’s desire to appeal is made known, to suspend the execution of the judgment of conviction pending the appeal, the judgment would be enforced notwithstanding an appeal ivas taken. — Code, §§ 4318, 4319; White v. The State, 134 Ala. 197. These statutes go no further than indicated above. They simply provide that, upon its being made known to the court that the defendant desires to take an appeal, “judgment must be rendered on tlie conviction, but the execution thereof must be suspended pending the appeal.” They do not in anywise interfere with the finality of the judgment, or its validity. Nor do they make, its finality dependent upon an affirmance or a reversal by this court. Their effect is to prevent the enforcement or execution of the judgment wliile the appeal is pending, and this clearly marks the limit of their operation. Our conclusion is, that the judgment of conviction remained in full force and effect in so far as it was an adjudication of the guilt of the defendant for the purpose for which it was offered in evidence.

The evidence shewed that the money stolen was proceeds of cattle, which Thomas, in Avhom the OAvnersliip of the money is alleged, had been entrusted to sell for his fallier. This constituted him a bailee of the money and the OAAuiership of it aatis properly laid in him.— Fowler v. The State, 100 Ala. 96.

The two Avritten charges requested by defendant Avere properly refused.

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