McMillan v. State

• Court: Alabama Court of Appeals
• Writing for the Court: MERRITT, J.
• Citation: McMillan v. State, 18 Ala.App. 118, 90 So. 56 (Ala. App. 1921)
• Decision Date: 12 April 1921
• Docket Number: 8 Div. 779
• Parties: McMILLAN v. STATE.

90 So. 56

18 Ala.App. 118

McMILLAN v. STATE.

8 Div. 779

Court of Appeals of Alabama

April 12, 1921

Appeal from Morgan County Court; W.T. Lowe, Judge.

Galvin McMillan was convicted of assault and battery, and he appeals. Affirmed.

J.C Draper was introduced and testified that he was 20 years old had taken the oath as deputy clerk, and had made a search for the indictment, and that he could not find it. The witness was then asked, "What were the terms of the oath you took?" and questions of similar import, to all of which the state interposed objections, which were sustained. The state then introduced the certificate of the clerk of the circuit court of Morgan county, showing copy of the indictment and other orders of the court relative thereto all of which was objected thereto.

G.O Chenault, of Albany, for appellant.

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

MERRITT J.

The appellant was convicted of an assault and battery in the Morgan county court. The indictment was returned to the circuit court of Morgan county on the 15th day of April, 1919.

Section 10 of an act "to establish a county court for Morgan county," approved September 24, 1919, Local Acts 1919, p. 194, provides for the transfer of all misdemeanor cases on the circuit court docket to the county court of Morgan county, and the record discloses an order of the circuit court to this effect made on November 3, 1919, which included the instant case. In the county court, the loss of the original indictment was sufficiently shown, and the certified copy of the recorded original indictment in the circuit court was amply shown to proceed to trial upon this copy.

It was immaterial as to what oath or the form thereof that was taken by the clerk.

The defendant declining to plead when arraigned, the court properly caused the plea of not guilty to be entered for him. Code 1907, § 7565.

The evidence was properly admitted that the assaulted party was a justice of the peace, and as such had shortly before the difficulty decided a civil case adversely to the defendant, as this tended to show a motive for the assault by the defendant.

We are impressed from a reading of the evidence that no harmful results could have come to the defendant, by allowing the state over his objection to prove his (defendant's) physical condition. The way the question is framed it could have applied to his condition...