Hudson v. State

• Decision Date: 18 June 1903
• Citation: 34 So. 854,137 Ala. 60
• Parties: HUDSON ET AL. v. STATE.
• Court: Alabama Supreme Court

34 So. 854

137 Ala. 60

HUDSON ET AL. v. STATE.

Supreme Court of Alabama

June 18, 1903

Appeal from Criminal Court, Jefferson County; Danl. A. Greene Judge.

Will Hudson and others, jointly indicted, were convicted of robbery, and appeal. Affirmed.

Upon the introduction of all the evidence the defendants requested the court to give to the jury the following written charges and separately excepted to the court's refusal to give each of them as asked: "(1) The court charges the jury that the declaration of Abe Williams that Will Hudson said to Will Jones, 'Do him like we did the officer,' this declaration is excluded from your consideration so far as it affects the guilt or innocence of defendants Hudson and Jones. (2) I charge you, gentlemen of the jury, to exclude as evidence the declaration of Abe Williams so far as it may affect the guilt or innocence of Will Hudson and Will Jones unless said declaration is corroborated by evidence sufficient to warrant the conviction of defendants Jones and Hudson beyond a reasonable doubt."

Robert L. Leatherwood, for appellant.

Massey Wilson, Atty. Gen., for the State.

HARALSON J.

1. The defendants, Hudson, Williams and Jones, were jointly indicted with two others, Bryant and Lee, for robbery. On their arraignment in court, on the 9th of January, 1903, the two latter moved the court to grant them a severance of trial from the other defendants, which motion the court granted and ordered them to be tried separately from the others. The other defendants, Hudson, Williams and Jones, did not move for a severance, but upon being duly arraigned, each pleaded not guilty to the indictment, and the 21st of January, 1903 was set for their joint trial. On that day, the state having announced ready, these defendants demanded a severance. The bill of exceptions recites: "The court having ascertained that all of said defendants were duly arraigned in open court on January 9th, 1903, though they had not employed nor were represented by counsel at the time, and each of said defendants pleaded not guilty, and made no demand for a severance at that time, nor at any subsequent time to the present time, the court refused to grant the severance of said [[[defendants] * * * and to this action of the court, the defendants excepted." In this ruling there was no error. Any further severance after the first, was a matter of discretion with the court.--Rule 32, p. 1200, Code 1896; Givens v. State, 109 Ala. 39, 19 So. 974; Malachi v. State, 89 Ala. 134, 8 So. 104.

2. The defendant, Abe Williams, after he had exhausted his five peremptory challenges, offered to challenge another, claiming that he was entitled to more than five challenges. When two or more defendants are tried together, each is entitled, under the statute for Jefferson county, to five peremptory challenges and no more.--Acts 1890-91, p. 561; Malachi v. State, supra.

3. John B. Messer, the party alleged to have been robbed, examined as a witness by the state, testified that on Friday night, January 2d, 1903, he was robbed of certain personal property such as is described in the indictment. This statement was made in answer to a question by the solicitor, asking him "whether or not he had ever been robbed." No objection was made to the question when asked, but after the witness had answered it, the defendant objected on the ground that the answer was a conclusion of the witness, and moved to exclude it, which the court declined to do. The objection, if good at all, came too late. It should have been made when the question was asked. Downey v. State, 115 Ala. 108, 22 So. 479.

4. This witness had testified on his direct examination to the exact amount of money of which he had been robbed,--of money taken from his person and from his cash drawer in his presence. On the cross by defendant, he stated that he could not state the exact amount of money taken from the cash drawer, but he gathered it in a general way from the salesbook. The defendant objected on the ground that the books were the best evidence of the amount taken. The objection on this ground was not available.

5. The witness on his cross, was asked by defendant, what report he made to the police office, and what description he gave of the man who asked for the handkerchief, which he proposed to buy from the witness, when he came into his store. He answered that he reported the robbery, and described the man who first came into the store, as one having on a silk-faced coat. On rebuttal, the solicitor asked the...