De Bardeleben v. State

• Decision Date: 12 February 1918
• Docket Number: 5 Div. 252
• Citation: 77 So. 979,16 Ala.App. 367
• Parties: DE BARDELEBEN v. STATE.
• Court: Alabama Court of Appeals

77 So. 979

16 Ala.App. 367

DE BARDELEBEN v. STATE.

5 Div. 252

Court of Appeals of Alabama

February 12, 1918

Rehearing Denied Feb. 26, 1918

Appeal from Circuit Court, Elmore County; Leon McCord, Judge.

E.L. De Bardeleben was convicted of burning an insured house with the intent to defraud the insurer, and he appeals. Reversed and remanded.

Hill, Hill, Whiting & Stern, of Montgomery, for appellant.

F. Loyd Tate, Atty. Gen., and Emmett S. Thigpen, Asst. Atty. Gen for the State.

SAMFORD J.

On the trial of the case, the wife of the defendant was, over the timely objection and exception of defendant and over her timely objection and protest, compelled to testify against her husband. It is not pretended by the Attorney General in brief that the court had the power or authority to compel the wife to testify in the case, over her objection and protest but is contended that it was a privilege she alone could claim, and if wrong was done it was to her and not to the defendant, and hence he was not so injured as to warrant a reversal. To sustain this contention, we are cited to the well-considered case of Johnson v. State, 94 Ala 53, 10 So. 427, where it was held that the wife could be compelled to testify in a case against her husband for an assault committed on her person. In that case, the wife was a competent witness whether she would or no, and therefore the general public had an interest in her testimony, but the statute of 1915, authorizing the husband and wife to testify in criminal cases (Acts 1915, p. 942), says, "The husband and wife may testify," etc., thus giving to them the election as to whether they become competent witnesses, and until the election is made, neither is a competent witness in a criminal case. That being the case, the testimony forced from the wife was not competent, and its admission was error.

The undisputed evidence discloses that the fire, the basis of the prosecution, occurred more than 12 months before the finding of the indictment on which the trial was had, and the charge, being a misdemeanor, would be barred by the statute of limitations, unless the bar is avoided. The state sought to avoid this bar by introducing in evidence another indictment returned within the time, together with the bench notes made by the judge at the time of the disposition of the first indictment, and an entry on the minute book of the court purporting to be an order quashing the first indictment and holding the defendant to await the finding of another indictment to be preferred. This last entry, it was admitted, had been made since the trial began, and after the adjournment of the court at which the bench notes were made, and without an order of the court therefor. Section 7351 of the Code provided that when an indictment is quashed and another ordered to be preferred, the statute of limitations is suspended, and section 7160 provides that in such cases the court may order another indictment preferred, etc., and, further, that in such case an entry of record must be made setting forth the facts. The clerk was without authority to make the entry at the time he did, and hence this entry was of no probative force. Its admission was error. Before the clerk would be authorized to complete the record to carry out the decision of the court made at a former term, a motion nunc pro tunc would have been required and an order made based on the bench notes made at a former term. Harris v. Bradford, 4 Ala. 214; Glass v. Glass, 24 Ala. 468; Yonge v. Broxson, 23 Ala. 684.

There was no question of waiver in this case as there was in the McSwean Case, 175 Ala. 25, 57 So. 732. On the contrary, the statute requires a record setting forth the facts and the bench notes of the judge do not measure up to this requirement. Wynn v. McCraney, 156 Ala. 630, 46 So. 854; Condon v. Enger & Co., 113 Ala. 233, 21 So. 227; Morgan v. Flexner, 105 Ala. 356, 16 So. 716; Baker v. Swift, 87 Ala. 530, 6 So. 153; Park v. Lide, 90 Ala. 246, 7 So. 805. The bench notes might be sufficient to prove a waiver, but in this case it is not a waiver, but a mandate of the statute, that must be complied with.

As this case must be reversed, we deem it necessary to say, for the guidance of the court on another trial, that while wide latitude is allowed in proving conspiracy extending to...