Phillips v. State

• Citation: 162 Ala. 14,50 So. 194
• Parties: PHILLIPS v. STATE.
• Decision Date: 10 June 1909
• Court: Alabama Supreme Court

50 So. 194

162 Ala. 14

PHILLIPS v. STATE.

Supreme Court of Alabama

June 10, 1909

Rehearing Denied June 30, 1909.

Appeal from Circuit Court, Randolph County; S. L. Brewer, Judge.

Bill Phillips was convicted of murder, and he appeals. Affirmed.

The original judgment sent to this court contained, among other things the following: "The court also ordered the sheriff to serve on defendant one entire day before the day fixed for the trial a copy of the indictment, together with a copy of the names of the fifty special jurors drawn, together with a copy of the names of the regular petit jurors organized for the second week of this term of this court, and said fifty special jurors, together with the regular petit jurors organized for the second week of this term of the court, shall constitute the venire from which to select a jury to try this case." The cause was submitted, but on motion of the Attorney General the submission was set aside for the purpose of amending the judgment in the lower court nunc pro tunc, with certiorari to bring up the judgment entry as amended nunc pro tunc at the succeeding term of the court. The submission was set aside and certiorari awarded on February 4, 1909. On May 13, 1909, an alias writ of certiorari issued to bring up the judgment entry as amended nunc pro tunc. As amended, the judgment entry shows that the sheriff was ordered to serve a copy of the indictment together with a copy of the names of the 50 special jurors drawn, together with a copy of the names of the regular petit jurors drawn and summoned for the second week of the term. The motion set out that the clerk omitted the word "legally" before the word "arraign," where it appears therein, and inadvertently wrote the word "organized," instead of "drawn and summoned," all of which errors are shown by the bench notes of the presiding judge, made and entered on the trial docket of said court at the time of arraignment. Demurrers were interposed, because it is an attempt to amend the order of the court setting the case for trial after the venire was served and the jury drawn and the case tried; (2) it is an attempt to revise the judgment of the court rendered at a former term of the court, and because the motion shows on its face that the circuit court is without authority to make the amendment asked for in the motion. The facts as to the jurors sufficiently appear in the opinion.

The following portions of the oral charge were excepted to "The defense of alibi is that the defendant was at another place at the time the crime was committed. If, in view of all the evidence, you have a reason to doubt as to whether the defendant was at the place the crime was committed at the time of its commission, then you should acquit; but if you believe from the evidence that the accused is not so far away from the place where the crime was committed but that he could with ordinary exertion have reached the place where the crime was committed, then you will consider that fact to prove or disprove the alibi. It is not necessary to prove the defendant guilty by testimony of witnesses who have seen the offense committed; but such guilt may be established by proof of facts and circumstances from which the jury believe it beyond a reasonable doubt."

The following charges were refused to the defendant: (9) "I charge you, gentlemen of the jury, that a person charged with a felony should not be convicted on circumstantial evidence alone, unless it excludes to a moral certainty every reasonable hypothesis but that of his guilt. No matter how strong the circumstances may be, they do not come up to the full measure of proof which the law requires if they can be reconciled with the theory that another person was the guilty agent." (8) "The court charges the jury that the provision of the law is that upon the evidence there shall not be a conviction unless to a moral certainty it excludes every reasonable hypothesis than that of the guilt of the accused. No matter how strong may be the facts, if they can be reconciled with the theory that some other person may have done the act, then the guilt of the accused is not shown by that full measure that the law requires." (20) "If under the evidence in this case, it is uncertain whether or not some other person may have killed Van Wright, then the jury must acquit the defendant." (23) "The jury must indulge every reasonable presumption arising from the evidence in favor of the defendant's innocence; and if the evidence fails to satisfy the jury that some other person may not have killed Van Wright, then the jury must find the defendant not guilty." (19) "The court charges the jury that the fact that the jurors said on oath that they would convict on circumstantial evidence does not mean that the jury must convict the defendant in this case." (14) "If the guilt of the defendant depends upon the testimony of the witness A. J. Browning, and the jury believe from the evidence that the evidence of said witness was willfully and maliciously false as to any material part of his testimony, then the jury may disregard all of the testimony of the said witness and find the defendant not guilty." (26) "Unless the jury is so convinced from the evidence of the defendant's guilt that a reasonable man would venture to act on that decision in matters of the highest concern and importance to his own interest, they must find the defendant not guilty."

Lackey & Bridges, for appellant.

Alexander M. Garber, Atty. Gen., and Thomas W. Martin, Asst. Atty. Gen., for the State.

DENSON J.

A judgment may be amended at a subsequent term, nunc pro tunc, and pending an appeal therefrom; and the amendment, being properly certified to the court, will relate back to the rendition of the original judgment and be considered as curative of the defects in the record as it originally appeared in this court. Seymour & Sons v. Thomas Harrow Company, 81 Ala. 250, 1 So. 45; Independent, etc., Co. v. American, etc., Co., 102 Ala. 475, 481, 15 So. 947. It is also settled by the decisions of this court that a judgment entry may be amended nunc pro tunc upon entries on the dockets, as quasi record evidence. Farmer v. Wilson, 34 Ala. 75. By the light of the decisions cited, it will be seen that the demurrer to the motion to amend the judgment was properly overruled. The judgment as amended has been properly certified to this court by the clerk of the circuit court, in his return to the certiorari, and it must be considered as the true entry.

The statute under which the special venire was formed provides that, when the day set for the trial is a day of a subsequent week of the term, the special jurors drawn by the presiding judge, together with the jurors drawn for such subsequent week, shall constitute such venire. Code 1907, § 7265. The statute is an amendment to the former statute (section 5005 of the Code of 1896) in the particular that the former prescribed that the jurors drawn and summoned for the subsequent week should be a part of the special venire. Under the statute as it stood in the Code of 1896, the name of the jurors drawn for the subsequent week, but not summoned, could not properly be placed upon the list of jurors served upon the defendant, and the placing of such names on the list constituted sufficient ground for quashing the special venire. Smith's Case, 133 Ala. 73, 31 So. 942. It must be conceded that the order in the instant case is not in conformity with the statute; and probably the presumption should be indulged that the sheriff, in making his list of the names that were served upon the defendant, conformed to the order of the court (Spicer's Case, 69 Ala. 159) and included only the names of jurors drawn and summoned. If he did conform to the order, then he left off of the list the name of C. B. Martin, who was drawn as a juror for the second week, but who was returned as not summoned, because he had moved out of...