Stevens v. State , 133 Ala. 28 ( 1901 )

TYSON, J.

Upon, the authority of Driggers v. The State,(123 Ala. 46), and Wilkinson v. The State (106 Ala. 28), we must hold that there is enough expressed in the minute entry to show that the judgment of the court was invoked and pronounced.upon the guilt of the defendants. If it be conceded that the verdict of the jury as. expressed in writing was too uncertain and indefinite, a point we do not decide, to support- a judg-. ment of conviction, this defect was cured by what was said by them, in explanation of the written verdict. Since verdicts may be ore temos, the oral statement by the jury of their findings, in connection .with the written verdict, was entirely ..sufficient and eliminated all ambiguity, if it existed, in the latter. This principle is clearly announced in the case of The State v. Underwood, 2 Ala. 744, where it was said: “It is not essential to a verdict, that it should be written; the jury may announce it to the court ore temos, or upon paper at their pleasure; and, however rendered, upon the suggestion of the judge, it may be varied by the jury, in its terms, so as to make it speak their intentions. And the change, thus made in the finding, need not be noted in writing, even if it be such a® to entirely supersede the verdict.” See also Robinson v. The State, 54 Ala. 86.

The record affords abundant evidence from which the jury were authorized to infer that there was a conspiracy between the father, the brother-in-law of these de-. fendants and the defendants themselves to kill the deceased. In the light of the results which followed almost immediately upon the declaration of Morgan, the brother-in-law, made in their presence, to the justice of the peace, it was clearly inferable that he had- reference' to defendants as well as to their father who are shown to have participated in the deadly combat.

In view of Morgan’s testimony on direct examination that there was no. conspiracy between. Mm and the defendants, it was entirely competent for the prosecution for the purpose of impeachment, after proper predicate laid, to prove by Pebley that he (Morgan) made the statement which he denied maMng. So, too, in view of the inference afforded by the evidence- that defendants went from their home, in an adjoining county to the place-of'the'difficulty, for the purpose of provoking a fight with the deceased, and in view of the statement of the defendant, Adolphus, that he was at the place of the difficulty as a witness in a suit pending between his mother and deceased,, and knew what the 'contract was 'between his mother and deceased, it was. competent for the solicitor on cross-examination, to further ask lfim what was the-contract between-his mother and the deceased, for the purpose of showing, if he could, that defendant’s presence was not for the'purpose of giving -testimony as a-witness, hut was in furtherance of the common design to 'slay the deceased. "

The only other exception reserved upon the trial to the admission of evidence, was the action of the court in permitting the State to introduce the clothing worn by deceased when killed. This exception is not urged in argument. Besides, there is manifestly no merit in it, the clothing having been, fully identified. .

Charge 12 refused to defendants is so clearly had, no further comment is necessary.

Charge A pretermits 'all reference to a conspiracy, which the testimony tended to show'- existed between the defendants and their father to kill the deceased, and was, therefore, properly refused.

There -was no. error in those portions of the oral charge of the court excepted to.

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