Evans v. State
| Decision Date | 30 June 1919 |
| Docket Number | 7 Div. 597 |
| Citation | 82 So. 625,17 Ala.App. 141 |
| Parties | EVANS v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied July 21, 1919
Appeal from Circuit Court, Cherokee County; W.W. Haralson, Judge.
Norman Evans was convicted of assault with intent to murder, and he appeals. Affirmed.
The original record contained no judgment. In response to the first certiorari, the clerk of the trial court forwarded the judgment containing the presently important words:
This judgment bears date July 30, 1918. At a special session of the court convened on April 1, 1919, the state moved the court to amend the judgment nunc pro tunc, alleging that the clerk made a mistake or clerical error in the said minutes and judgment, as is shown by the memoranda or bench notes of the court (setting out the judgment as above set out).
It was agreed that the verdict returned by the jury was lost and could not be found. The bench notes were as follows:
"July 31, 1918, jury and verdict guilty of an assault with intent to murder, notice of appeal by defendant,"
--and the appeal bond. The objection interposed was, briefly, that the term of the court at which the judgment was rendered had adjourned prior to the date of the filing of the application and prior to the date of the hearing of same, that the recital of the minute entry is the best evidence of the verdict of the jury, and that the memoranda or bench notes are insufficient to permit an amendment to the verdict of the jury as shown by the minute entry, and that the proceedings at once contradict or vary the terms of the verdict of the jury as shown by the minute entry.
The following charge was given at the request of the state:
1. The defendant is interested in the result of the verdict of the jury, and in weighing his evidence the jury may consider his evidence in the light of his interest, together with all the evidence in the case.
The following is charge 4, refused to the defendant:
The burden is on the state to convince you beyond the reason of a doubt that the defendant committed the offense as charged in the indictment, and that at the time he was mentally capable of forming the intent; and if the state has failed to so convince you, then you cannot convict the defendant of an assault to commit murder.
Charges 5 and 6 were charges on the presumption of innocence.
Hugh Reed, of Center, and Hood & Murphree, of Gadsden, for appellant.
J.Q Smith, Atty. Gen., and Horace Wilkinson, Asst. Atty. Gen for the State.
The record as originally filed omitted the judgment of conviction. Upon a return to the writ of certiorari, the judgment as so certified disclosed that the defendant was convicted for assault to murder, omitting the recital that the assault was with intent to murder. Thereafter the solicitor of the Ninth judicial circuit filed a motion to amend the judgment nunc pro tunc. A hearing was had on this motion on April 1, 1919, and granted. Thereafter an additional writ of certiorari was issued from this court directed to the clerk of the circuit court of Cherokee county, to certify to this court the judgment in the cause as last amended, and a return to this last writ has been made showing by the judgment as last amended that the defendant was convicted of assault with intent to murder.
The appellant, through his counsel, on the hearing of the motion to amend the judgment nunc pro tunc, filed certain exceptions to the sufficiency of the motion for the...
To continue reading
Request your trial
-
Butler v. Walton
...of defendant. If there is any criticism of this charge, it could have been cured by requesting an explanatory charge. Evans v. State, 17 Ala.App. 141, 82 So. 625; Mobile Light & R. Co. v. Nicholas, 232 Ala. 213, 167 So. The evidence in the case presented a jury question and the court proper......
-
Jones v. Daniel
... ... incident to the introduction of the evidence. Appellant ... objected to the question after answer was made thereto ... Kelley v. State, 32 Ala.App. 408, 26 So.2d 633; ... Smith v. State, 16 Ala.App. 546, 79 So. 802 ... Assignment ... number 12 is as follows: ... arrest did not arm them with the right to use more force than ... was reasonably necessary to accomplish this purpose ... Evans v. Walker, 237 Ala. 385, 187, So. 189; ... Patterson v. State, 91 Ala. 58, 8 So. 756 ... So the ... charges do not state an ... ...
-
Maddox v. City of Birmingham, 6 Div. 15
...requested an explanatory charge. Conner v. Foregger, 242 Ala. 275, 7 So.2d 856; Moore v. Cruit, 238 Ala. 414, 191 So. 252; Evans v. State, 17 Ala.App. 141, 82 So. 625; Emergency Aid Life Ass'n v. Gamble, 34 Ala.App. 377, 40 So.2d Assignments numbered 5, 6, 7, 8, 9, 10, 11, 12, 13, and 15 ar......
-
Stephens v. State
...by assignments of error 1, 2, and 3 are not insisted upon, the points therein raised being settled by the following cases: Evans v. State, 82 So. 625; Harris v. State (Sup.) 82 So. 450; Chambers State (June 10, 1919) 84 So. 638. The exceptions indicated by assignments of error 4 and 5 have ......