Brown v. State

• Decision Date: 09 June 1897
• Citation: 115 Ala. 74,22 So. 458
• Parties: BROWN v. STATE.
• Court: Alabama Supreme Court

22 So. 458

115 Ala. 74

BROWN v. STATE.

Supreme Court of Alabama

June 9, 1897

Appeal from criminal court, Jefferson county; S.E. Greene, Judge.

Frank Brown was convicted of burglary, and he appeals. Affirmed.

In the indictment charging burglary, the building burglarized was alleged to be the property of the Tennessee Coal, Iron &amp Railroad Company, a body corporate under the laws of the state of Tennessee. On the trial of the cause the state offered in evidence a copy of the act of the legislature of Tennessee, together with the amendments thereto, with a certificate of the secretary of state of Tennessee attached "to incorporate the Tennessee Coal & Railroad Company." This act of incorporation was passed March 24 1860. The amendments attached to this act show that on a September 13, 1881, the charter was amended by changing the name of the company to the Tennessee Coal, Iron & Railroad Company. A certificate of the secretary of state attached to the copy of the act of incorporation and the amendments recited that it was a true copy of the act incorporating the Tennessee Coal, Iron & Railroad Company, and "that the statement above regarding amendments to same was correct, the original of which is now of record at my office." The defendant objected to the introduction of said charter, upon the grounds of a variance between the indictment and the charter offered in evidence. This objection was overruled and defendant duly excepted. After rendering a judgment of conviction, the court rendered the following sentence: "On this the 14th day of November, 1896, the said defendant being now in open court, and being asked by the court if he had anything to say why the sentence of the law should not now be pronounced upon him, says nothing. It is therefore considered by the court, and it is the judgment of the court and sentence of the law, that the said defendant, the said Frank Brown, perform hard labor for the county for twelve months. And the costs legally taxable against the defendant in this cause, amounting to $69.15, not being presently paid or secured, it is ordered by the court that the said defendant perform additional hard labor for the county 231 days to pay said costs."

Brickell, C.J., dissenting.

J. S. Edwards, for appellant.

Wm. C. Fitts, Atty. Gen., for the State.

HEAD J.

There is no merit in the exception reserved by the appellant to the admission of the evidence touching the name of the owner of the property the subject of the crime. The alleged owner-a body corporate-was originally chartered by the name of "Tennessee Coal and Railroad Company," but afterwards, and before the indictment in this case was found, the charter was amended by changing the name to "Tennessee Coal, Iron and Railroad Company." This latter is the name of the owner as charged in the indictment. The objection to the evidence was that there was a variance between it and the indictment. Most clearly, the objection was not well taken. An objection to the original charter, separate and apart from the amendment which was offered in connection with it, cannot properly be considered.

In pursuance of law, the appellant was sentenced, on conviction to perform hard labor for the county for 12 months, as punishment for the offense committed. In addition to this, he was sentenced to perform hard labor for the county for 231 days to pay the costs of the prosecution. This latter sentence was in conformity to section 4504 of the Code, which authorizes the imposition of such hard labor for costs, in cases of felony, for a period not exceeding 15 months. The question is now raised whether this provision of the Code was altered, and the authorized period of hard labor for costs reduced to a point below the period for which appellant was sentenced, by subsequent acts of the legislature to which we are referred. The first of these acts was a general revision of what is known as the "convict system of this state," and was enacted February 14, 1893, Acts 1892-93, p. 194. Its title is, "An act to create a new convict system for the state of Alabama, and to provide for the government, discipline and maintenance of all convicts in the state of Alabama." Section 54 of this act contains, among others, the following provision: "Whenever any convict is sentenced by the court, and required to do hard labor for the county, an additional sentence, not to exceed six months, in any one case, for the payment of the costs of his conviction, may be imposed," etc. Thus, if this provision was enforceable, the maximum term of hard labor for costs was reduced to six months. At the session of 1894-95 there was, by an act approved February 18, 1895 (Acts 1894-95, p. 849), another revision of the convict system. The title of ...