Collins v. State

• Decision Date: 06 February 1912
• Citation: Collins v. State, 3 Ala.App. 64, 58 So. 80 (Ala. App. 1912)
• Parties: COLLINS v. STATE.
• Court: Alabama Court of Appeals

58 So. 80

3 Ala.App. 64

COLLINS v. STATE.

Court of Appeals of Alabama

February 6, 1912

Rehearing Denied Feb. 22, 1912.

Appeal from Clay County Court; E. J. Garrison, Judge.

Irby Collins was convicted of assault with intent to murder, and he appeals. Affirmed.

Most of the facts appear in the opinion of the court. The question asked the witness Baker on his recall was: "Is it not a fact that you were run out of the community where Hawkins and Collins lived, and where you did live, for lying about a young lady?"

The following charges were refused to the defendant: (9) "The court charges the jury that you cannot convict the defendant, unless you believe from the evidence beyond all reasonable doubt that the defendant is guilty, even though you may believe from the evidence that Jim Peters' conduct was that of a hypocrite." (11) "The court charges the jury that the defendant is only responsible in this cause for his own conduct, and you are not authorized from this evidence to convict this defendant on the theory that he was in a conspiracy with any other person or persons to kill J. M. Hawkins." (15) "The court charges the jury that the defendant is not required to establish the defense of an alibi, which he has set up, to the reasonable satisfaction of the jury." (16) "If you have a reasonable doubt as to whether or not defendant was at the home of Tom Collins at the time Hawkins was shot, you must find the defendant not guilty." (22) "The court charges the jury that, if you believe the evidence of the character of Irby Collins, the defendant was not guilty." (A) "The court charges the jury that the proof of an alibi is a complete defense, and if you believe from the evidence that the defendant was at home the day of the shooting, or have a reasonable doubt as to where defendant was, you will find him not guilty."

Riddle Ellis, Riddle & Pruett, for appellant.

R. C Brickell, Atty. Gen., W. L. Martin, Asst. Atty. Gen., and Whatley & Cornelius, for the State.

PELHAM J.

The indictment charged the defendant with an assault on one Jim Hawkins with intent to murder, the jury found the defendant guilty, and the court imposed a punishment of five years' imprisonment in the penitentiary. From the judgment of conviction, this appeal is prosecuted by the defendant.

A plea in abatement was filed to the indictment, setting up (1) that a brother-in-law of the party alleged to have been assaulted was a participating member of the grand jury that found and returned the indictment against the defendant; and (2) that the caption and indictment shows on its face that it was preferred, not by the county court of Clay, but by the county court of Clay county. The statute does not disqualify a member of the grand jury by reason of relationship to a person against whom a crime has been committed. Code 1907, § 7304. Nor did the common law make such a disqualification. See 20 Cyc. p. 1302, and cases cited under note 4. Besides the objection was not available by plea in abatement. Acts 1909 (Sp. Sess.) p. 315, § 23.

Defendant's pleas in abatement, setting up that the caption and entire indictment shows on its face that it was preferred by the "county court of Clay county," and not the county court of Clay, and that the indictment was not found by a grand jury organized in the county court of Clay are without merit. The incorporation of the additional and surplus word "county," following the word "Clay," in the designation of the court on the margin at the head of the indictment, and on the margin at the head of the grand jury venire, would not be ground for an abatement of the indictment, when the record shows--as it does in this case--that the defendant was charged on a valid indictment found and presented by a legal grand jury into a court of competent jurisdiction, i. e., the county court of Clay, which was held at a time and place provided by law, and presided over by an officer designated by law.

The caption of an indictment is not merely the marginal statement on the head of the indictment and of the venire. "The caption of an indictment is that entry of record showing when and where the court is held, who presided as judge, the complete venire and indorsements, and who were summoned and sworn as grand jurors." Reeves v. State, 20 Ala. 33. See, also, Morgan v. State, 19 Ala. 558; State v. Murphy, 9 Port. 487; Quinn v. State, 49 Ala. 354; Perkins v. State, 50 Ala. 154; Gater v. State, 141 Ala. 10, 37 So. 692. These record entries may be looked to, to supply any defect or clerical error in the special caption or heading of an indictment. Overton v. State, 60 Ala. 73; Gater v. State, supra. And an inspection of the record in this particular case shows the name of the state, county, court, and term in which and at which the indictment was preferred and a sufficient compliance with the provisions of the statute. Code, § 7131.

The evidence showed that the injured party, Jim or J. M. Hawkins while riding along a settlement road on his own premises Sunday afternoon, December 11, 1910, on horseback, was shot in the head, face, and arms by some one in ambush with a shotgun, being hit by more than 80 shot, No. 5 and No. 8, and was confined to his house about two weeks as a consequence of the wounds received. Hawkins testified that, when the gun fired, he looked back and saw the defendant standing on the side of the road in the direction from which the shot came, working at a gun he held in his hands. Three other state's witnesses, members of the family of the prosecuting witness, testified to facts tending to show that the defendant was the...