Shirley v. State , 144 Ala. 35 ( 1906 )

DENSON, J.

At the fall term, 1903, of the circuit court, held for the county of Monroe, Isaac Shirley, Jesse Shirley and Joseph Shirley were separately indicted for an a-saulf with intent to murder Jim Smith.

The cases were tried at an adjourned term,of the court held in Jiilv and August, 1905. By an agreement made between the solicitor and counsel for the defendants the three cases were tried jointly. The record shows that Jesse and Isaac were convicted and each sentenced to the penitentiary for a term of twenty years, they appealed.

The record fails to show a formal adjudication of the defendants’ guilt upon the verdict rendered by the jury. But the minute entry shows a judgment of sentence by the court "in accordance with the verdict. It has been held by this court that this sufficiently implies the judgment of guilt and is a judgment- of conviction which will support an appeal. — Ex parte Robinson, 123 Ala. 103, 26 So. 645; Tolbert’s case, 140 Ala. 96, 37 So. 78; Drigger's case, 123 Ala. 46, 26 So. 512; Wilkinson’s case, 106 Ala. 28, 17 So. 458. Following these authorities it must be held that the judgment is sufficient.

Before entering on the trial the defendants moved a quasihal of the indictments and that they be stricken from the files. The motion was rested on the fact that the minute entry showing the organization of the court at the fall term, 1903, the term at which the indictments were preferred, failed to- show that a foreman of the grand jury was appointed as required by section 5022 of the Code. And upon the further ground that the number of the grand jurors at the said term were reduced to fourteen and section 5023 of the Code was not complied with in making up the deficiency. The motion was overruled. The defects in the organization of the grand jury pointed out in the motion to quash the indicements went to the formation of the grand jury. Such defects fall within the curative terms of section 5269 of the Code as construed in Billingslea's case, 68 Ala. 486, consequently the court properly overruled the motion 'to quash the indictment. — Phillips’ case, 68 Ala. 469; Thompson’s case, 122 Ala. 12, 26 So. 141; Dunn’s case, 39 So. Rep. 147; Hall’s case, 134 Ala. 90, 32 So. 750.

This renders it unnecessary to consider any question raised on the rulings of the court on the admissibility of evidence on the trial of the motion to- quash and on the nunc pro tunc proceedings.

The evidence tended to show, that Jim Smith, the person named in the indictment, was shot in his house on the night of August the 8th, 1903, while he and his family were at the supper table, and that it was a bright moonlight night. The wife of Smith, inter alia, testified that she heard the dog bark; that she got up and went to the door and saw Isaac and Jesse Shirley standing in the yard; that the moon was shining bright; that she saw them plainly; they had guns; two shots were fired close together; that her husband was shot; that one shot struck her little daughter in the arm and one struck her. This evidence being before the jury, it was competent for the state to show by the witness that there had been a previous difficulty between the defendants and Jim Smith, as tending to show motive, malice and intent of the defendants. The court properly allowed the witness to testify that there was such previous difficulty.

Evideuce which tended to show how long ill feeling Lad existed between Jim Smith and the defendants was relevant, and legal, and the objection to such evidence was properly overruled.

Mrs. Smith having testified that the parties who did the shooting were standing about tliirty-five yards from the dining room door, the court permitted her to- testify, against the defendant’s objection, that about the time the gun fired her daughter, Mattie, who was present, exclaimed, hold! look!! look!!! there is Uncle Isaac and Uncle Jesse going to shoot us. It was subsequently shown that Mattie looked out of the door and saw her uncles, Isaac and Jesse standing in the yard. The exclamation yas a part of the res gestae and was properly admitted. — Dismuke’s case, 83 Ala. 287, 3 So. 671; Plant’s case, 140 Ala. 52, 37 So. 159.

On the predicate laid, the evidence of Klausen, given on the preliminary trial, was properly admitted. — Lowe’s case, 86 Ala. 47, 5 So. 435; Watkin’s case, 133 Ala. 88, So. 435; Dennis’ case, 118 Ala. 72, 23 So. 1002; Wheat’s case, 110 Ala. 68, 20 So. 449; 133 Ala. 1, 32 So. 158; Wilson’s case. 140 Ala. 43, 37 So. 93.

The solicitor was properly allowed to ask the defendr ant’s witness, Morrison, on cross-examination, if he testified on the preliminary trial as to any thing he heard Mattie say as to who shot her father. The witness had testified that on Sunday morning after the shooting on Saturday night, Mattie told witness that she saw only oiie person and did not know who it was. The failure of witness to give evidence of this fact on the preliminary trial was a proper circumstance to be considered by the jury in weighing his evidence. Besides, the question fell within the latitude allowed on the cross-examination of a witness. — Stoudenmire v. Williamson, 29 Ala. 558.

The only defense was that of alibi, and the evidence introduced by the defendants tended to support it. The evidence tended to show that Jesse and Isaac Shirley spent the week before the shooting together. The solicitor in his argument after stating the above tendency of the evidence said to the jury: “I submit that they then formed the conspiracy to commit the act.” The expression only amounted to an inference and was within the bounds of legitimate argument. — Cunningham’s case, 117 Ala. 59, 23 So. 693. There was evidence from which if might have been inferred that Jim Smith, the injured man, was dead, hence, the court committed no error in not excluding from the jury the remarks of the solicitor relating thereto.

It is" sufficient to say of charge B in the defendants’ series, that it required the jury to he convinced of the guilt of the defendants beyond all doubt. This required a degree of certainty beyond that fixed by law.

Charge 5 was properly refused. It required an acquittal on the hypothesis that after -weighing the evidence the jury was convinced that the defendants could not be innocent.

Charge 7 has been so frequently condemned as to require no further, comment. — Allen’s case, 111 Ala. 80, 20 So. 490; Picken’s case, 115 Ala. 42, 22 So. 551; Roger's case, 117 Ala. 9, 22 So. 666; Amos’ case, 123 Ala. 50, 26 So. 524.

There was no error committed in allowing the written evidence of Klausen to be carried out by the jury. If it was not a matter of right the state had, under section 3329 of the Code, to have the jury carry the written evidence with them, it was at least a matter that rested in the discretion of the court.

There is no error in the record prejudicial to the defendants and the judgment appealed from is affirmed.

Affirmed.

Haralson, Tyson and Dowdell, JJ., concurring.