Jones v. State

• Decision Date: 02 March 1907
• Citation: 43 So. 179,150 Ala. 54
• Parties: JONES v. STATE.
• Court: Alabama Supreme Court

43 So. 179

150 Ala. 54

JONES v. STATE.

Supreme Court of Alabama

March 2, 1907

Appeal from Geneva County Court; P. N. Hickman, Judge.

Lee Jones was convicted of assault and battery, and he appeals. Affirmed.

The defendant was indicted, tried, and convicted for an assault and battery on Eva Boyett. The questions raised on appeal are sufficiently stated in the bill of exceptions.

W. O Mulkey, for appellant.

Alexander M. Garber, Atty. Gen., for the State.

HARALSON J.

After all the evidence was introduced, as the bill of exceptions states, "the defendant requested the court to give the jury the following charges, each being in writing, and the court refused to give each charge, and the defendant reserved an exception thereto, separately."

The case of Verberg v. State, 137 Ala. 74, 34 So. 848 97 Am. St. Rep. 17, is decisive that these charges cannot be considered. The request was to give all the charges as an entirety, and if any one of them was improper, there was no error in refusing the whole number. To the same effect is Johnson v. State, 141 Ala. 37, 37 So. 456; Yeats v. State, 142 Ala. 58, 38 So. 760; Gregory v. State (Ala.) 42 So. 829; Bell v. State, 140 Ala. 65 37 So. 281; Glover v. State (Ala.) 40 So. 354.

To say no more of the other charges requested by defendant than that the general affirmative charge was requested by him, which under the evidence could not have been given, is sufficient to condemn the entire batch.

The defendant moved the court, to quash the indictment in the cause, on the following ground: "The circuit court at the fall term, 1906, Geneva county, appointed E. H. Hill as special solicitor of said court during said term, the regular solicitor being absent (on account of sickness); during the proceedings before the grand jury, Hon. C. D. Carmichael, who was not a member of said grand jury, nor a special solicitor by appointment of said court, was present in said grand jury examining witnesses in said cause, and otherwise taking part therein," etc.

It appeared, that C. D. Carmichael was present and conducted the examination of some of the witnesses. He testified that he was in the grand jury (room) on Tuesday of the first week of court, at the request of the solicitor, who was ill, and at the request of the judge, and that, on that day he conducted or helped to conduct the examination of the witnesses, but that he did not remember whether he or the foreman, administered the oath to them; that the grand jury did not act or vote on the case when he was present.

He was an attorney at the bar, and also solicitor for the county court of Geneva county, when the indictment was found, and the case was tried. Boyett testified...