Goley v. State , 87 Ala. 57 ( 1888 )

McCLELLAN, J.

Section 751 of the Code must be construed with reference to the constitutional and legislative policy of the State to secure to defendants a speedy trial, and to mean that the criminal dockets shall be taken up on the second Monday, of the term to the exclusion of civil business, but not to deny tbe court tbe right to proceed with the trial of criminal cases before that time. To hold otherwise would be, in many instances, to enforce idleness on the Circuit Courts during a part of their terms, and to impede and delay the administration of justice, — a result diametrically opposed to the spirit and purpose of the statute! Defendants objection to being put on trial during the first week of the term is untenable.

Section 4447 of the Code makes it “the duty of the clerk of the Circuit or City Court to set for trial all criminal cases in his court, except capital cases and cases of parties in custody, for particular days;” and provides that “no case so set shall be called for trial before such day.” This case was set for a particular day of the second week of the term. On Wednesday of the first week, the defendant being in court and not objecting, the case was called, and the plea of former acquittal of murder in the first degree, by reason of a conviction of murder in the second degree, which had been reversed by this court, was interposed, confessed by the solicitor, proved by the records of the court, and adjudged good. Until this action was taken, the case of the defendant wás a capital one, and expressly excepted from the operation of the statute quoted above. The action of the clerk, therefore, in setting the case was a nullity, and there was no error in the order of the court setting another and an earlier day for the trial, or in proceeding with the trial on the day so set.

Several exceptions are reserved to the refusal of the court below to allow declarations of the defendant, made just after the fatal shot, to be given in evidence, as a part of the res gestee. It is not shown in this record what these declarations were — whether they related to the act charged, or threw light on it, or tended to elucidate it, or would have been beneficial to the defendant, or were in any way material'to the inquiry. Under these circumstances, it is impossible for this court to affirm that the action of the Circuit Court in this regard was erroneous.—Roberts v. State, 68 Ala. 524; Stewart v. State, 63 Ala. 199; Burns v. State, 47 Ala. 370; Tolbert v. State, at present term.

Only one declaration or statement of the defendant is at all indicated in the bill of exceptions. This consisted of an offer on his part, made two or three minutes after the shooting, “to lift deceased up.” Even conceding the relevancy of this remark, it is not shown to have been made so immediately after the act as to authorize the presumption that it arose from, and was part of the main fact, but, on the contrary, might be a part of a course of conduct determined on after the act, and intended to give a false coloring to it. Garrett v. State, 76 Ala. 21.

The bill of exceptions states, that “the defendant asked the court to give the following charges, which were in writing, and numbered one, three and four, each of which charges the court refused to give; whereupon the defendant then and there duly and legally excepted.” This is a general exception, and the ruling of the court will be upheld, if any one of the charges was erroneous. — McGehee v. State, 52 Ala. 224; Black v. Pratt Coal & Coke Co., 85 Ala. 511, and cases there cited.

Without deciding that either of these charges was a correct statement of law, it is patent that the third and fourth were bad, in that they assumed that the State had failed to prove an “adequate motive” for the crime; and if given, they would have withdrawn from the jury the evidence on that subject, which, though weak and inconclusive it may have been, they had a right to consider. — Commander v. State, 60 Ala. 1; McAdory v. State, 62 Ala. 154; Marler v. State, 67 Ala. 55. The bill of exceptions not purporting to set out all the evidence, the presumption will be indulged here, if necessary to sustain tire refusal of these charges, that there was other testimony than that shown in the record going to prove motive for the crime.

The judgment of the Circuit Court is affirmed.