Wilson v. State

56 So. 114 | Ala. Ct. App. | 1911

PELHAM, J.

The official court stenographer not having been in attendance upon the trial of the case, the defendant objected to the examination of witnesses or proceeding with the case Avithout having a report of the testimony of the Avitnesses by the court reporter, or a competent assistant. The presiding judge informed the defendant’s counsel making the motion that the regular court stenographer Avas absent, that he had absented himself without making or sending an excuse and had failed to provide an assistant, that the court was Avithout authority in laAV to supply an official stenographer, and that there was no stenographer accessible even if the court had the authority to supply the place. The law requiring an official stenographer (Acts 1909 [Sp. Sess.] p. 264) to take a report of the testimony of witnesses upon the request of any party to the case does not contemplate that a stenographer by simply absenting himself can clog the AAdteels of justice, stop the proceedings of the court, and force an adjournment, or even the continuance of a case regularly called for trial. Upon a party’s request, it is the duty of the judge to require the stenographer to take full stenographic notes of the trial, and an abuse of the court’s authority in giving the proper direction and providing for a full report by the stenographer might well be considered a denial of the defendant’s rights and such an error upon the part of the court as to work a reversal of the case; but, under the facts presented by the case under consideration, the court was without means or authority to supply the place of the official stenographer, who seems to have failed to attend the session of the court without knowledge or fault to be imputed to the judge and without giving an excuse or supplying his place. Under such circumstances, the presiding judge properly required the business of the court to proceed in the absence of the stenographer.

The oral charge of.the court, taken as a. whole, is a sufficiently accurate statement of the rules of law applicable to the evidence. That part of the charge to which an exception was reserved was no more than an instruction to the jury to consider the statement of the witness in reference to the defendant’s being requested to get whisky in connection with the other evidence in the case in arriving at a conclusion as to whether or not it was in fact whisky that was procured — an instruction that was entirely proper and one the court had a perfect right to give as applicable to the evidence; besides, the defendant had testified, without objection, that it was whisky he asked for, and there was no real contradiction in the evidence as to its having been whisky.

Defendant insists that the court erred in refusing the general affirmative charge requested by defendant because the commission of the offense is n¡ot shown to have been .within the punishable period. The prosecution must have been commenced within 12 months next after the commission of the offense (Code 1907, § 7847), and the indictable act must be shown to have been committed within the time prescribed. The only witness examined in behalf of the state testified he bought a pint of whisky from the defendant for 75 cents “a short time before the grand jury returned the indictment against the defendant in this case.” The only other witness examined was the defendant, who testified in his own behalf in reference to the transaction, not denying that he met the state’s witness at the time and place testified to by him and received the money and got the whisky and delivered it to the state’s Avitness, but further testifying that he got the whisky from “Arthur Turner’s.” The use of the expression “a short time before the grand jury returned the' indictment” must be construed in the connection in Avhich it was used, to arrive at the true import and meaning of the words. “A short time before,” used in some connections, might cover a much longer period or duration of time than when used in others. The meaning of the Avords must generally he derived from' their context, and expressions depend for their meaning upon the connection in Avhich they are used, varying- greatly under the different circumstances and conditions surrounding their use. The expression “a long time” would refer to a very different period or duration, and have a widely different meaning in measuring time Avhen used by an archaeologist having reference to the period of existence of the Egyptian pyramids, than Avhen used by Carolina Governors with reference to the time between drinks. When a Avitness, in narrating the circumstances connected with the purchase by him of a pint of whisky, refers to it as “a short time,” the expression in that connection could not reasonably be taken .to refer to so long a period of time as 12 months, and would probably be taken to mean a much shorter time, and the jury, in. weighing the evidence before them, might well have considered this proof sufficiently definite and certain as to time to bring the offense well within the punishable; period. The attention of the trial court was not otherwise directed to the contention made here that the venue-as to time was not proven, except by requesting the geii-eral charge, and from what Ave have said it Avill be seen there avus no error committed in its. refusal.

We find no error in the record, and the judgment of the court beloAv is affirmed.

Affirmed.