McCaig v. State , 16 Ala. App. 581 ( 1918 )

BROWN, P. J.

[1] The indictment was returned against the defendant on April 14, 1917. He was arrested and gave bail on the 8th of May, 1917. His first and only demand for trial by jury was made on November 5, 1917; more than 30 days having elapsed between the date of his arrest and the filing of the demand for trial by jury. Failing to demamd a trial by jury within the time allowed by the statute, the right of trial by jury was waived, and it was the duty of the court to proceed to trial without a jury. Acts 1915, p. 940, § 2; Baader v. State, 201 Ala. 76, 77 South. 370; Ex parte Elba Bank & Trust Co., 199 Ala. 651, 75 South. 294.

[2] It is permissible for a witness to testify as to the appearance and emotions of another person. Parrish v. State, 139 Ala. 45, 36 South. 1012; Gardner v. State, 96 Ala. 12, 11 South. 402; Reeves v. State, 96 Ala. 33, 11 South. 296; Thornton v. State, 113 Ala. 43, 21 South. 356, 59 Am. St. Rep. 97.

The principle upon which such opinions are admissible as evidence is very fully stated in Carney v. State, 79 Ala. 14; Thornton v. State, supra; 4 Ency. Dig. Ala. Rep. p. 210, § 290(3).

Under this rule, the court did not err in overruling defendant’s objection to the statement of the witness Busby that his daughters were nervous and frightened when he arrived at his home.

[3] It was also permissible for the state to show as a part of the res gestee of the assault made by the defendant and White on the Busby girls that the clothing of one of the girls was torn. Lundsford v. State, 2 Ala. App. 38, 56 South. 89; Rowlan v. State, 14 Ala. App. 19, 70 South. 953.

[4] The indorsement on the indictment: “A true bill. J. A. West, Foreman of the Grand Jury. Filed in open court, this 14th day of April, 1917. J. L. Draper, Clerk”— was a sufficient compliance with the statute, and the motion in arrest of judgment was properly overruled. Code 1907, § 7154; McKee v. State, 82 Ala. 32, 2 South. 451.

There is no error in the record, and the judgment is affirmed.

Affirmed.