Core v. State
Decision Date | 01 May 1973 |
Docket Number | 5 Div. 108 |
Citation | 50 Ala.App. 533,280 So.2d 794 |
Parties | Charlie Will CORE v. STATE. |
Court | Alabama Court of Criminal Appeals |
Richard D. Lane, Auburn, for appellant.
William J. Baxley, Atty. Gen., and Don C. Dickert, Asst. Atty. Gen., for the State.
The Grand Jury of Lee County, Alabama, indicted appellant for murder in the second degree. The Jury's verdict found the appellant guilty as charged, and its verdict and judgment set sentence at thirty years imprisonment in the penitentiary. Appellant's motion for new trial was denied.
The testimony of the State's witnesses showed that on Friday, December 3, 1971, Jack Hill, Richard Childs, Eddie James Carlisle, Benjamin Franklin Brundage (the deceased), and the appellant went to a vacant lot behind Jack Hill's house in Auburn, Alabama, to shoot dice. A dispute arose over the number showing on the dice, and appellant swung twice at Brundage, hitting him once. Appellant then pulled a .22 caliber pistol from his right-hand pocket, and two shots were fired. One shot struck Brundage in the stomach, resulting in his death. Richard Childs testified that he told appellant that he had shot Brundage, and appellant replied,
There was no testimony offered on behalf of appellant.
Just prior to striking the jury, counsel for the appellant moved for a preliminary hearing, which was overruled. This ruling was correct.
It is well settled that after a person has been indicted, the failure to bring him before a committing magistrate becomes a moot question, since he is, after the action of the grand jury, not being held upon a mere warrant of arrest signed by an aggrieved citizen, but rather by reason of a solemn bill of indictment for which he must answer in the circuit court. Trammell v. State, 43 Ala.App. 308, 189 So.2d 760; Queor v. State, 278 Ala. 10, 174 So.2d 687; Manning v. State, 43 Ala.App. 182, 185 So.2d 145; Bowman v. State, 44 Ala.App. 331, 208 So.2d 241.
At the conclusion of the trial court's oral charge, but before the Jury had retired, counsel for appellant twice presented eleven written charges to the trial court. The court refused to rule on these instructions stating that it was 'too late to give them now.' (R. p. 76) Such action was erroneous. An exception to this action was duly noted by defense counsel.
This court pointed out in Coatney v. State, 49 Ala.App. 385, 272 So.2d 593, that a trial court cannot fix any particular time during a trial at which written charges must be presented. Porter v. State, 234 Ala. 11, 174 So. 311; Jackson v. State, 24 Ala.App. 601, 139 So. 576.
If written charges are presented at any time during the trial and before the jury retires, they must be marked 'given' or 'refused,' as provided for by Title 7, Section 273, Code of Alabama 1940. Rogers v. State, 36 Ala.App. 602, 61 So.2d 249; Northcot v. State, 43 Ala. 330; Jackson v. State, supra; Porter v. State, supra; Porter v. State, 27 Ala.App. 441, 174 So. 313, cert. den., 234 Ala. 226, 174 So. 315.
Counsel on appeal, however, bears the onus of getting a record before the appellate court. Orum v. State, 286 Ala. 679, 245 So.2d 831. In the present case the requested written charges properly appear in the record through the motion for new trial.
The requested charges were here either not properly predicated on the evidence in this case, since there was no evidence of self-defense, or were fully and substantially covered by the trial court's oral charge. In addition, Requested Charge No. 2 contained a misspelled word ('malidious'), and this was properly refused. Darby v. State, 48 Ala.App. 421, 265 So.2d 449; State v. Owen, 279 Ala. 281, 184 So.2d 362; Griffin v. State, 284 Ala. 472, 225 So.2d 875; Title 7, Section 273, Code of Alabama 1940.
Therefore, we hold that the error complained of in this case was harmless. Supreme Court Rule 45, Title 7, Appendix.
During the District Attorney's closing argument to the Jury, the following occurred:
Nix v. State, 32 Ala.App. 136, 22 So.2d 449, defines honky-tonk as 'a low drinking resort,' which definition is adopted from Webster's New International Dictionary, Second Edition, at page 1198, and Cumulative Annual Pocket Part of 19 Words and Phrases, Perm.Ed.
In Powell v. State, 39 Ala.App. 246, 100 So.2d 38, cert. den., 267 Ala. 100, 100 So.2d 46, the court stated:
'. . . As to matters which can be said to be prejudicial per se, we can as a matter of law ascribe reversible error, e.g., 'honky-tonk' in Nix v. State, 32 Ala.App. 136, 22 So.2d 449.'
See also Horton v. State, 41 Ala.App. 16, 122 So.2d 920, cert. den., 271 Ala. 699, 122 So.2d 923; White v. State, 41 Ala.App. 54, 123 So.2d 179, cert. den., 271 Ala. 702, 123 So.2d 186.
In the case at bar, two of the State's witnesses did state that they had been drinking on the date of the crap shooting incident,...
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Miller v. State
... ... Houston v. State, 203 Ala. 261, 82 So. 503 ... It appears appellant did make an allusion, orally, to a limiting instruction after the court completed its oral charge. However, appellant on appeal bears the onus of bringing a record before the appellate court. Core v. State, 50 Ala.App. 533, 280 So.2d 794, 291 Ala. 776, 280 So.2d 797 (1973). Counsel must submit written instructions to the trial court covering the omitted principle of law in order to preserve the potential error for appellate review. Gray v. State, 52 Ala.App. 48, 294 So.2d 448; Thigpen v ... ...
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Lehr v. State, 7 Div. 680
... ... Barnes v. State, Ala.Cr.App., 361 So.2d 390, cert. den. Ala., 361 So.2d 396 (1978); Core v. State, 50 Ala.App. 533, 280 So.2d 794, cert. den. 291 Ala. 776, 280 So.2d 797 (1973); Thomas ... ...
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Hill v. State, 8 Div. 537
... ... State, 36 Ala.App. 602, 61 So.2d 249 (1952); Pate v. State, 32 Ala.App. 22, 21 So.2d 551, cert. denied, 246 Ala. 521, 21 So.2d 552 (1945) ... Smith v. State, 51 Ala.App. 527, 287 So.2d 238 (1973), cert. denied, 292 Ala. 750, 289 So.2d 808 (1974), and Core v. State, 50 Ala.App. 533, 280 So.2d 794, cert. denied, 291 Ala. 776, 280 So.2d 797 (1973), cited by appellant, applying the predecessor to A.R.A.P. 45, are distinguishable from the case at bar since preserved error was found in Smith and an exception was taken in Core to the trial court's refusal ... ...
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Matthews v. State, 8 Div. 61
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