McGuire v. State

Decision Date06 March 1923
Docket Number7 Div. 872.
Citation95 So. 565,19 Ala.App. 138
PartiesMCGUIRE v. STATE.
CourtAlabama Court of Appeals

Appeal from Circuit Court, De Kalb County; W. W. Haralson, Judge.

Will McGuire was convicted of resisting or opposing an officer and he appeals. Reversed and rendered.

I. M Presley, of Ft. Payne, for appellant.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

There were two counts in the indictment. The first charged that the defendant Will McGuire did knowingly and willfully oppose or resist G. A. Scott, a deputy sheriff or officer of said county, in attempting to make a lawful arrest of one Tom York, who at the time said arrest was attempted was in the actual commission of a public offense. The second count is similar in its averments and charges that Will McGuire did knowingly and willfully oppose or resist G A. Scott, a deputy sheriff or officer of said county, in the lawful arrest of one Tom York, who at the time of said lawful arrest was in the actual commission of a public offense against the peace and dignity of the state of Alabama. The court overruled the defendant's demurrer to the indictment, and to each count of it, separately and severally.

The form prescribed by the Code (Code 1907, § 7161, form 92) for an offense under section 7708 is applicable to the offense of opposing or resisting an officer in serving, executing, or attempting to serve any legal writ or process; no form is prescribed for the offense, also provided for by section 7708 for resisting any lawful arrest, whether under process or not. However, the form prescribed for an offense under the first clause of that statute furnishes an analogy for a form of indictment for the offense provided for by the other clause of the statute.

We are of the opinion that the indictment here has as much particularity in its allegations as form 92, supra. It was not subject to demurrer because of the alternative designation of the office of the person by whom the arrest was made or attempted. Murphy v. State, 55 Ala. 252; Andrews v. State, 78 Ala. 483.

The averment that the arrest or attempt to arrest was by G. A. Scott, a deputy sheriff or officer of said county, imported that he was an officer authorized to make arrests within the terms of the statute on that subject. Code, 6267.

In alleging that the arrest made or attempted was of a person who at the time was in the actual commission of a public offense, the arrest is as fully described as the warrant or writ of arrest is required to be described when the defendant is charged with resisting an officer in making or attempting to make an arrest under a warrant or writ of arrest. Howard v. State, 121 Ala. 21, 25 So. 1000. It would appear that no greater particularity is required in the one case than in the other.

We do not think the indictment in this case was subject to any of the grounds of objection assigned in the demurrer, for the reason that the indictment, with sufficient fullness, directly and expressly alleged the fact, in the doing of which the offense consists, "in such a manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment." The statutory requirement being that every indictment must state the facts constituting the offense, in ordinary and concise language, without prolixity or repetition, in such manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment. Code 1907, § 7134.

This case was tried by the court without a jury and the appeal is from the judgment of conviction rendered by the court. Under the terms of the statute it is the duty of this court to review the conclusions and judgment of the court on the evidence and in so doing shall indulge no presumption in favor of the court below, and if there be error shall render such judgment in the cause as the court below should have rendered, or reverse and remand the same for further proceedings in the circuit court as this court may deem right. Acts 1915, p. 939, § 3.

The provision of above statute that on review "no presumption shall be indulged in favor of the court below," has been construed to mean that this provision can only apply where the opportunities of this court to consider the evidence is the same as the trial court; that is, when the evidence was taken by deposition. It has been expressly held that this statute did not have the effect to change the rule as to the weight to be accorded the finding of the trial court upon the facts. This rule is that, when the evidence is ore tenus, or partly so, and the trial court has the advantage of seeing and hearing the witnesses, this court will not disturb the conclusions, unless it is plainly and palpably contrary to the weight of the evidence. Thompson v. Collier, 170 Ala. 469, 54 So. 493; Hackett v. Cash, 196 Ala. 403, 72 So. 52.

Even under this rule, however, we are of ...

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6 cases
  • Evans v. State, 7 Div. 143
    • United States
    • Alabama Court of Appeals
    • 29 June 1951
    ...the evidence. Pride v. State, 32 Ala.App. 639, 29 So.2d 346; Edmondson v. State, 30 Ala.App. 433, 7 So.2d 508. See also McGuire v. State, 19 Ala.App. 138, 95 So. 565. The judgment entry does not in any manner undertake to sentence the defendant for the fine and costs. This is required. Cran......
  • Stephens v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 8 May 1973
    ...Brence v. State, 28 Ala.App. 459, 186 So. 785; Thornhill v. Gulf Coast Produce Exchange, 219 Ala. 251, 121 So. 912; McGuire v. State, 19 Ala.App. 138, 95 So. 565 (1923); Evans v. State, 36 Ala.App. 145, 53 So.2d 764. The rule in Alabama was succinctly reiterated in Summers v. Dobbins, 31 Al......
  • Summers v. Dobbins
    • United States
    • Alabama Court of Appeals
    • 22 August 1944
    ... ... court in respect thereto is made the basis of assignment of ... error. The judgment entry makes no recitation of this ruling ... In this state of the record the question is not properly ... before this court. Empire Guano Co. v. Ellis, 19 ... Ala.App. 463, 98 So. 38; Alabama Fuel & Iron ... unless it is plainly and palpably contrary to the weight of ... the evidence." McGuire v. State, 19 Ala.App ... 138, 95 So. 565, 566; Thompson v. Collier, 170 Ala ... 469, 54 So. 493; Simpson v. Golden, 114 Ala. 336, 21 ... ...
  • Jaye v. State
    • United States
    • Alabama Court of Appeals
    • 14 January 1930
    ...the opportunities of the appellate court to consider the evidence are the same as the trial court had, as in depositions. McGuire v. State, 19 Ala. App. 138, 95 So. 565. Ross v. State, 15 Ala. App. 187, 72 So. 759. parte Ross, 198 Ala. 694, 73 So. 1001. In the instant case no point of law i......
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