Wesley v. State, 52 Ala. 182

52 Ala. 182 | Ala. | 1875

BRICKELL, C. J.

The appellant was indicted for murder. The record discloses that he acknowledged in open court that a copy of the indictment, and a list of the jurors summoned for his trial, had been duly served on him one entire day before the day appointed for trial. This acknowledgment it is now insisted is not sufficient evidence of the fact of such service; that it should be made to appear from other evidence. If it could be conceded essential to the validity of a conviction for felony, which may be punished capitally, that it should appear affirmatively from the record, that a copy of the indictment and a list of the jurors had been served on the defendant, one entire day before his trial, we are at a loss to conceive any higher evidence of this fact than the admission of it in open court by the defendant. Such an admission dispensed with all inquiry into the fact, and is as against the defendant conclusive evidence of it.

The appellant pleaded in abatement to the indictment, that it had not been presented to and filed in the court as required by the statute. The indictment was indorsed “ a true bill,” and the indorsement signed by the foreman of the grand jury. It was also indorsed “ Filed in open court, by the foreman of the grand jury, in presence of fourteen other members of the grand jury this the 17th day of April, A. D. 1874,” and the indorsement is signed by the clerk. This is a literal compliance with the statute. R. C. § 4148. The only evidence of the authenticity of an indictment which is required under our law is the indorsement of the foreman of the grand jury. The indorsement the clerk is required to make may be made at any time, while the cause is in fieri. Clarkson v. State, 3 Ala. 378 ; Mose v. State, 35 Ala. 421. Independent of this consideration, the plea in abatement was an admission of the genuineness of the indictment. The plea could not be interposed except to a genuine indictment. A spurious paper, attempted to be foisted on the court, is not met by a plea, but by a motion to strike from the files, or other appropriate motion, on the hearing of which evidence as to its character may be received. Clarkson v. State, supra. There was no error in sustaining the demurrer to the plea in abatement.

In the empanelling of the jury, no errors prejudicial to the appellant were committed. Acts or declarations of persons not parties, or of one party in the absence of another, are often received in evidence as parts of the res gestee. It is perhaps impossible to lay down a general rule as to the acts or declarations which will be received as forming parts of the res gestee. Each case is dependent in a great degree on its peculiar facts ' and circumstances. Such acts or declarations as are thus received, must have been done or made at the time of the occurrence of the main fact, must have a tendency to elucidate it, and must so harmonize with it as obviously to constitute one transaction. It is not essential that they should be precisely concurrent in point of time with the main fact; if they spring out of the transaction; if they elucidate it; if they are voluntary and spontaneous, and if they are made at a time so near to it, as reasonably to preclude the idea of deliberate design, they are regarded as contemporaneous with the main fact. Starkie on Ev. 86 (Sharswood’s ed.) ; Gandy v. Humphries, 35 Ala. 621; 1 Green. Ev. § 108. The cry of the mob accompanying Lord George Gordon was received in evidence as part of the res gestee, and showing the character of the principal fact, alleged to be an overt act of treason. The exclamation of the deceased, “ Jake, what are you doing here ? ” was coincident in point of time with the main fact, — the violence producing his death. From the moment he was aroused from sleep by the noise on his premises until he was shot, all the facts in evidence were but parts of a continuous transaction. The exclamation, sprung from the very character of the facts — was natural, voluntary, and spontaneous, and was not the result of design. Tested by the strictest, narrowest rules applied, in determining when an act or declaration can be received as forming part of the res gestae, this exclamation has all the elements of admissibility.

There are numerous decisions of this court, affirming that a charge to the jury authorizing a conviction, without proof of the venue, is erroneous. So if no exception is reserved to the charges which may have been given, or no charge is requested asserting that a want of evidence of venue is fatal to a conviction, but an exception is reserved to the conviction and sentence. These decisions will be followed as correct expositions of the law. They will not be extended to the reversal of a judgment of conviction, in the absence of all exception in the primary court, because of a failure to make proof of venue. No exception being reserved, the accused must be deemed to have waived evidence of venue. So far as the jurisdiction of the court is dependent on the venue, the original statement in the indictment, “State of Alabama, Montgomery county,” is equivalent to an averment that the offence was committed within the body of that county, and authorizing evidence that such was the fact. Noles v. State, 24 Ala. 672.

The time, manner, and the length to which the examination of witnesses can be protracted, “ lies chiefly in the discretion of the judge before whom the cause is tried, it being from its very nature susceptible of but few positive and stringent rules.” 1 Green. Ev. § 431; Gayle v. Bishop, 14 Ala. 552 ; Ashley v. Hopper, 15 Ala. 457. We cannot discover that the judge of the city court did not wisely exercise this discretion in terminating the repeated plying of the witnesses with the same questions to which the same answers had been made.

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