Tiller v. State , 10 Ala. App. 45 ( 1914 )

THOMAS, J.

Defendant was indicted for murder in the first degree and convicted of murder in1 the second degree. It is urged in the . brief of appellant’s counsel that, under the authority of Sylvester v. State, 71 Ala. 17, the judgment of conviction should be reversed, because of the failure of the record to affirmatively show that the defendant was personally present in court when the court entered the order setting the day for her trial and drawing' the special venire therefor. We are of opinion that this order- does show the personal presence of the defendant at that time, and that the contention of her counsel is therefore without merit. This order, among other things, recites: “Defendant [naming her] is arraigned and pleads not guilty. It is therefore ordered,” etc. To “arraign,” which is the term used in the order, as observed, is nothing else but to call the prisoner to the bar of the court to answer the matter charged upon him in the indictment. —See 1 Words & Phrases, p. 498, and the long list of cases there cited. The recitals of the record in this case, being different from the case cited, therefore affirmatively show that, at the time of the mating of the order mentioned, the defendant was present in court and pleaded not- guilty; for to say, as the record does, that she was “arraigned” imports that she was personally present, since she could not otherwise be “arraigned.”

The only other error urged in brief is as to the action of the court in overruling defendant’s general objection to the following question, propounded by the solicitor to one of the state’s witnesses: “What did Wayman Wiggins [a third party who was present at the difficulty] say in the presence of defendant and deceased and Joe while the difficulty was going on?” Assuming that the question was objectionable, the error in overruling the objection will not reverse the judgment of the lower court, because it does not appear that the answer was also objected and excepted to. This answer was not responsive to the question, and stated, not what said Wayman Wiggins said, but what defendant said to Wayman Wiggins during the progress of the difficulty, telling him to knock h-1 out of deceased, which was a material fact, and permissible to be proved as a part of the res gestae.

We find no error in the record, and the judgment of conviction is affirmed.

Affirmed.