Webb v. State , 138 Ala. 53 ( 1902 )

HARALSON, J.

Tlie verdict was, “We the jury find the defendant gulity of murder in the first degree as charged in the indictment and fix his punishment at death.” The word gulity is a self-corrective clerical error for guilty, and will he so treated. — Long v. State, 84. Ala. 1; Stewart v. State, 137 Ala. 33; 22 Ency. Pl. & Pr. 899 et seq.

Objection is raised, that the transcript fails to show that any copy of the names of the jurors to try defendant was served on him or his counsel as required by law. The record does show, that the defendant appeared, on the day of the trial, in his own proper person and by attorney, and having’ been previously arraigned, pleaded not guilty, went to trial without objection to the jury, or that a list of them had not been served on him. It also shows, that the defendant being in open court, on the 20th March, 1903, an order was made that sixty jurors be allowed for the trial of defendant, and that, the 6th of April, thereafter', be set for his trial; and the number necessary, with the jurors summoned for the week, to make the number of sixty jurors, were duly and regularly drawn, and the sheriff was ordered, forthwith, to summon the persons whose names were so drawn, and serve a list of them, together with a list of the names of those summoned for the week, together with a copy of the indictment, on the defendant or his attorney of record. Whether this order was complied with, does not affirmatively appear of record, but no objection was raised below for any such lack of compliance with it by the sheriff. In the absence of a showing to the contrary, the presumptions are, that the sheriff discharged his duties, or that the defendant waived the defects, if they existed, which he now for the first time raises against the regularity of the proceedings.— Hughes v. The State, 117 Ala. 25, and authorities there cited.

The defendant, the next morning after the homicide, was seen by the witness for the State, E. Walker, to whom defendant confessed that he shot and killed his wife. He also testified that defendant told witness that he would write to him under the name of G. W. Cunningham, and gave witness a little piece of paper, and said to liim, if he got a letter with that name signed to it, he would know who wrote it. He also stated, that the paper ought to be in his pocket, but he could not find it, and it must be at his house. He was asked by the solicitor, “Do you know what was on that piece of paper?” The defendant objected on the ground that the paper was the best evidence, but his objection was overruled, and the witness answered, “G. W. Gunning-ham.” This evidence was primary as was the written memorandum containing the name, and being collateral merely to the issue involved, it was competent for the witness to testify tO' its execution and contents without producing or accounting for its non-production.— Smith v. Dinkelspeil, 91 Ala. 528.

The testimony of Jack Evans to the effect that defendant, the morning of the day on which at night the homicide was committed, had undertaken to borrow his gun; that the gun was at witness’ house, on the gun rack, just about dusk of that day; that he missed it about 9 o’clock that night, and that he afterwards found and identified it in the possession of a person who testified that he got it from the defendant, was clearly admissible, especially in connection with evidence tending to show that defendant had taken the gun from witness’ house without his knowledge or consent.' — Finch v. State, 81 Ala. 41.

We find no error in the record and the judgment and sentence of the court below must be affirmed.

Affirmed.