McDaniel v. State
| Decision Date | 12 February 1914 |
| Citation | 10 Ala.App. 79,64 So. 641 |
| Parties | McDANIEL v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.
Dock McDaniel was convicted of assault with a weapon, and he appeals. Affirmed.
Wert & Lynne and O. Kyle, all of Decatur, for appellant.
R.C Brickell, Atty. Gen., for the State.
The court's refusal to grant the defendant's motion in arrest of judgment because the jury assessed a fine of $50 "and costs" against the defendant was without error. The judgment entry does not show the verdict of the jury to be in the form complained of, but, on the contrary the verdict set out in the judgment is, in all respects regular, and in the following words and figures:
When the statements in a bill of exceptions conflict with matters that are shown by, and properly are a part of, the record proper, the latter must prevail over the former. Mann v. Darden, 6 Ala.App. 555, 60 South, 454.
The verdict recited in the judgment is prima facie correct, although variant from the verdict found in the papers. State v. Underwood, 2 Ala. 744. The regular judgment recitals of the court import verity, and are conclusive. Deslonde et al. v. Darrington, 29 Ala. 92.
The addition to the verdict of the words "and costs," after the assessment of a stipulated fine (as shown by the verdict set out in the bill of exceptions), would not make the verdict invalid. The italicized words would be mere surplusage. A verdict imposing a fine and imprisonment or hard labor on a trial under an indictment for an assault and battery, although invalid or unauthorized as imposing imprisonment and hard labor, has been held to be sufficient to sustain a judgment of guilt and sentence to pay the fine imposed, and the imposition of the unauthorized punishment but surplusage, not rendering the verdict void. Taylor v. State, 114 Ala. 20, 21 So. 947.
The action of the trial court in passing on the defendant's motion for a new trial is not reviewable here. Ferguson v. State, 149 Ala. 21, 43 So. 16.
The testimony of the witness Draper as to threats or declarations of hostility made by the defendant against the assaulted party about an hour and a half before the assault was competent and relevant, as tending to show a criminal intent to commit the crime charged, and as shedding light upon the question...
To continue reading
Request your trial
-
The State v. Burgess
...a perfect verdict is left. State v. McGee, 55 S.C. 252; Johnson v. State, 63 So. 339; People v. Baer, 262 Ill. 155; McDaniel v. State, 64 So. 641. J. Walker, J., concurs; Faris, P. J., not sitting. OPINION REVELLE, J. On the 8th day of June, 1915, the prosecuting attorney of Pemiscot County......
-
Pappenburg v. State
...... was no question raised of the identity of the barrels. . . The. defendant's motion in arrest of judgment on the ground. that the verdict returned by the jury assessed a fine in a. stipulated amount "and costs" was properly. overruled. [65 So. 421.] . . Doc. McDaniel v. State (opinion rendered Feb. 12, 1914) 64 So. 641. . . We find. no error in the record, and an affirmance is ordered. . . Affirmed. ......
-
Melton v. State
...... J. . . When. there is a difference in the recitals in the record proper. and the bill of exceptions, the recitals in the record proper. must govern in all matters properly appearing in the record. proper. Bruce v. Citizens' National Bank, 185. Ala. 221, 64 So. 82; McDaniel v. State, 10 Ala. App. 79, 64 So. 641. The record proper shows that affidavit filed. September 11, 1928, was an amendment of the original. affidavit made September 10, 1927, and on which the warrant. was issued. . . The. rulings of the court respecting the affidavit are affirmed ......
- Knott v. State