James v. State

• Court: Alabama Court of Appeals
• Writing for the Court: BRICKEN, P.J.
• Citation: James v. State, 24 Ala.App. 322, 135 So. 405 (Ala. App. 1931)
• Decision Date: 19 May 1931
• Docket Number: 4 Div. 747.
• Parties: JAMES v. STATE.

135 So. 405

24 Ala.App. 322

JAMES v. STATE.

4 Div. 747.

Court of Appeals of Alabama

May 19, 1931

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

William James was convicted of grand larceny, and he appeals.

Reversed and remanded.

L. A. Farmer, of Dothan, for appellant.

Thos E. Knight, Jr., Atty. Gen., and Thos. S. Lawson, Asst. Atty Gen., for the State.

BRICKEN P.J.

This appellant and his wife, Mattie James, were indicted, charged with the offense of embezzlement and grand larceny. The persons thus accused were jointly tried, resulting in the acquittal by the jury of Mattie James and the conviction of this appellant of the offense of grand larceny. He was duly adjudged guilty, and sentenced to serve an indeterminate term of imprisonment in the penitentiary of not less than two years nor more than three years.

The evidence, without dispute, disclosed that the time of the commission of the offense complained of in the indictment, if committed at all, was during the month of June, 1925.

These appellants were first indicted by the grand jury on January 13, 1928; the defendants were arraigned on this indictment on March 12, 1929. When thus arraigned the following judgment was made: "March 12, 1929-In this case, it appeared from the evidence that there was a variance between the allegations of the indictment and the proof in this, the name of the party alleged to have been injured was L. J McFarland, while her true name is L. J. McFauthur or L. J McFathur, and the defendant not consenting to allow the indictment to be amended, the prosecution was dismissed before the jury retired, and another indictment was ordered to be preferred by the next Grand Jury."

The foregoing order was made pursuant to the provisions of sections 4550 and 4551 of the Code 1923. These sections are as follows:

"4550. An indictment may be amended, with the consent of the defendant, entered of record, when the name of the defendant is incorrectly stated, or when any person, property, or matter therein stated is incorrectly described.

"4551. If the defendant will not consent to such amendment, the prosecution may be dismissed at any time before the jury retires, as to the count in the indictment to which the variance applies; and the court may order another indictment to be preferred at the same or at a subsequent term."

Pursuant to the foregoing order of the court, the grand jury of said county, on April 19, 1929, returned a new indictment charging the same two defendants with the identical offenses charged in the first indictment, in which, however, the name of the alleged injured party was correctly stated, thus curing the defect in the first indictment.

Upon the trial of this case, the state, in order to avoid the running of the statute and to show that the prosecution was begun within the three-year period as fixed by the statute, introduced in evidence the first indictment by permission of the court and over the objection and exception of defendants. This ruling of the court is the first insistence of error urged upon this appeal. This earnest contention of appellant cannot be sustained. The entries of the court in this connection meet every requirement of the statutes, supra, and the manner of the introduction in evidence of the former indictment, coupled with the oral testimony, were all allowed by the court without error. There could be no uncertainty as to the identity of the case, in each of the indictments, and from the manner of introduction shown upon this trial there is no merit in the insistence to the effect "there being no connecting links shown between the first indictment and the minute entry and the second indictment." It would, we think, be difficult to conceive of a more thorough compliance with the statutes than is here shown.

There was no error in the court's ruling in connection with the testimony of state witness Herrington. No controversy prevailed as to the matters inquired about. All the evidence on the question was without...