Carwile v. State , 148 Ala. 576 ( 1905 )

ANDERSON, J.

— The defendant moved to quash the indictment because the record did not show an organization of the grand jury. Court had been in session several days and the clerk had ample time to have written up the organization of the grand jury and the judge ought to have required him to do so. Paragraph 8 of section 934 of the Code of 1896 says it is the duty of the clerk “To keep a book, in which must be entered, .the minutes of each day’s proceedings during the term of the court, and the orders and judgments, in the order in which they are made or rendered.” Section 2641 says, “The minutes of the court must be read each morning in open court, and, on the adjournment of the court, must be signed by the judge.” The law certainly contemplates that the clerk shall write up the proceedings of each day and read the minutes the next morning in open court in order that the judge can .determine the correctness of the entries. This action is directed by law and a compliance therewith tends to keep down disorder and confusion and prevents a congestion Avhen the time for adjournment arrives. It is no hardship on the clerk as the minutes must he written up in the end and it is just as well to record the proceedings daily as the law directs. There are clerks Avho write the minutes of each day and read the same in open court the next morning, and it is the writer’s experience that it is a safeguard against errors and irregularities. This court has held, however, that section 2641 is directory, and a failure to sign the minutes does not effect the validity of the judgment or decree.—Bartlett v. Long, 2 Ala. 161; Frazier v. Prayton, 36 Ala. 691.

It appears from the record in the ease at bar, that this case was tried at the term the indictment was found and though the organization of the grand jury was not recorded at the time the motion Ayas made, that it Avas written up before the court adjourned for the term. It is settled law that the judgments of the court are under the full power of the court during the term of the rendition.—Neal v. Caldwell, 3 Stewart, 134; 3 Mayfield’s Dig. p. 1160, § 675. It follows that the court had judicial knoAvledge, or in fact actual knowledge of its orders and judgments rendered during the term and it was sufficient if the entries Avere made before the court adjourned. —15 Ency. Pl. & Pr. 205-6- and cases cited.

Another ground of the motion Avas that one of .the grand jurors, Hunt, Avas a resident of another county. There was no proof of this averment and Ave can presume that the judge ascertained that the grand jurors possessed the legal qualifications to serve, before organization. But the presumption is needless in this case as the bill of exceptions recites the fact.

After the first indictment Avas quashed and the defendant was arraigned under the neAV one, the action of the judge Avas eminently correct in draAving another venire. We do not think the defendant can complain because the trial judge did not put upon him a venire that AAras draAvn out of the box previous to the return of the indictment under which he was tried.

The defendant before entering upon the trial moved to quash the venire, because no copy Avas served on him or his counsel as required by law, and becaues the copy served on Mm Avas not a copy of tbe venire to try tbe case; because it contained tbe name of one D. M. Beeves as a regular juror and tbe said Beeves Avas not summoned. It was admitted that said Beeves Avas on tbe list served on tbe defendant; that be was draAvn as a regular juror to serve the week this cause wag set for trial, but that be .Avas never summoned. This case was set for a day of •the succeeding week and under tbe statute, tbe venire drawn by tbe judge and tbe regular jurors drawn and summoned constituted tbe venire to try tbe case.—§ 5005 of Code of 1896. Section 5276 requires that “a copy of tbe venire to try tbe case” be served on tbe defendant or bis counsel, etc. It is plain that no such copy was served. Tbe juror Beeves not being summoned should not have been on the list and a paper containing bis name Avas in no sense a copy of tbe venire to try tbe case. And tbe appearance of one of many names that do not belong thereon or tbe omission of names that do •deprive tbe paper served of being a copy as required by law. Section 4997 of tbe Code of 1896, Avhich provides that, “no objection can be taken to any venire facias for a petit jury except for fraud in drawing or summoning tbe jurors,” has no application to this question. Tbe objection was not aimed at tbe venire facias but at a failure to serve a copy of tbe venire as required by laAV. Nor does the provision of section 5007, that “a mistake in tbe name of any person summoned as a juror, either in the venire or in tbe list of jurors delivered to tbe defendant; is sufficient cause to quash,” have any application to this question! Tbe motion complains of no mistake in tbe name of any juror but says a name -was served on him that should not have been so served. We cannot say that this was error without injury under section 4333 of. tbe Code of 1896. As tbe defendant should not have been put to trial until a copy of tbe ve-nire was served on him, the trial court erred'in not sustaining tbe motion to quash the venire. — Ryan v. State, 100 Ala. 105, 14 South. 766; Burton v. State, 107 Ala. 108, 18 South. 284; Thomas v. State., 94 Ala. 74, 10 South. 432.

Tbe. trial court did not err in overruling defendant’s objection to witness Wright, “How came you to tell me about tliis conversation.” The witness had been examined by the defendant on cross-examination and an effort Avas made to contradict or impeach him, by shoAv-ing that he failed to divulge facts upon another examination that he was then narrating and it Avas perfectly legitimate for him to explain why the facts were not disclosed then and -why divulged on the second trial. As a rule, witnesses, cannot testify to their intent, reasons or motives, but- there is an exception to the rule to the effect that when his impeachment is attempted by contradictory statements, acts' and conduct, he may in rebuttal explain, and may be asked Avhy lie made certain statements.—Williams v. State, 123 Ala. 39, 26 South. 521.

Defendant objected to the evidence of McCluskey, “Deceased usually carried his bill book in his inside breast pocket.” This court seems to have become committed to the proposition that a witness can testify to the habit or custom of another.—Naugher v. State, 116 Ala. 463, 23 South. 26; Wiley v. State, 99 Ala. 146, 13 South. 424. This is true when such custom or habit is known to the witness testifying.

The state’s theory was that the defendant killed deceased in order to get certain papers he held against him and which were in the bill book referred to, and that said book was found in the road and that it must have been extracted from the pocket of the deceased, and was therefore relevant.

The defendant also objected to testimony of Avitness McCluskey,. “I don’t remember ever seeing Snow carry his bill book in his overcoat pocket.” The record sIioavs that this was said upon cross-examination, and so far as we knoAV many have been in response to defendant’s question.—Tolliver v. State, 94 Ala. 111, 10 South. 428.

The court did not err in overruling the defendant’s objection to evidence of witness Holiday and Washburn as to buying corn from defendant. The. evidence showed that the deceased had a mortgage on his crop, that said mortgage was in the bill-book aDd the fact that defendant had been selling or trying to sell the corn, was a circumstance to increase his motive or desire to get the mortgage from the deceased.

There was no error in admitting the ha.t in evidence.

The evidence of the witness Amos was properly admitted. The statement ivas made by the defendant, not as a confession but as an explanatory statement to his bother. The witness Amos testified it was voluntary and the record does not show that it ivas made in response to any question propounded by the said Amos. On the other hand the defendant’s, brother was with them and the defendant, had been taken to the barber shop by Amos at his request in order that he might talk with his brother.—Jones v. State, 137 Ala. 12, 34 South. 381; Christian v. State, 133 Ala. 109, 33 South. 64; White v. State 133 Ala. 122, 32 South. 139.

The court did not err in excluding the evidence of witness Price, that defendant was following Snow’s buggy, “in a gait in which a man would ordinarily follow a runaway team.” In the first place it was the mere opinion of the witness. Second, It was permitting the defendant by his own speed of locomotion to make evidence for himself.—Pate v. State, 94 Ala. 14, 10 South. 665.

Charge. 2 was-argumentative- and was properly refused, as was the case with charge 1. Charge 3 lias often been condemned.—Eggleton v. State, 129 Ala. 129, 30 South. 582. Charge 4 was properly refused. It singles out and gives undue prominence to one phase of the case. Charge 5 Avas bad.. It Avas misleading ,and the jury might infer therefrom, that the court was holding that the evidence was Ayeak and insufficient, and it was not the duty of the court to pass upon the weight and sufficiency of the evidence. Charge 6 was árgumentativ'e. Charge’7 Avas bad. It tends to mislead the jury to the conclusion that any evidence, tending to show innocence' would be sufficient to create a reasonable doubt of guilt. Charge 8 was good and should have been given. Charges 9 and 10 were argumentative and were properly refused.

Reversed and remanded.'

McClellan, C. J., Tyson and' Simpson, JJ., concur.