Sawyer v. State, 1 Div. 199

• Decision Date: 30 April 1935
• Docket Number: 1 Div. 199
• Citation: 162 So. 314,26 Ala.App. 434
• Parties: SAWYER et al. v. STATE.
• Court: Alabama Court of Appeals

162 So. 314

26 Ala.App. 434

SAWYER et al. v. STATE.

1 Div. 199

Court of Appeals of Alabama

April 30, 1935

Rehearing Denied May 14, 1935

Appeal from Circuit Court, Monroe County; F.W. Hare, Judge.

John B Sawyer and J.W. (alias Pete) Lynum were convicted of murder in the second degree, and they appeal.

Affirmed.

Certiorari denied by Supreme Court in Sawyer et al. v. State, 162 So. 314.

J.D Ratcliffe, of Monroeville, for appellants.

A.A Carmichael, Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.

BRICKEN Presiding Judge.

The two appellants were jointly indicted, jointly tried, and both were convicted, and appeal from the judgment of conviction wherein both were adjudged guilty of the offense of murder in the second degree and duly sentenced to imprisonment for ten years. The indictment contained three counts originally, but before the case was submitted to the jury, the court, at the instance of the state, entered a nol pros as to the first count of the indictment.

Count 2 of the indictment charged the defendants with the offense of murder in the second degree. Specifically, that they "unlawfully and with malice aforethought killed Will Youngblood by striking him with their fists and feet, or, by striking him with some blunt instrument to the grand jury unknown, but without premeditation or deliberation." The third count charged them with killing the said Youngblood "by pushing or throwing him from the top of a high ditch or gully," etc.

Each count of the indictment designates defendant Lynum as, "J. W. Lynum, alias Pete Lynum, whose name is to the grand jury otherwise unknown."

Before pleading to the merits, the defendant Lynum interposed his plea of misnomer, which was stricken by the court upon written motion of the state. This plea in abatement of defendant Lynum was filed in time and we do not accord to insistences of counsel to the effect that the trial court granted the motion to strike on the grounds that it came too late. The ruling of the court in this connection as shown by the judgment entry is as follows: "Defendant, J.W. Lynum, alias Pete Lynum, filed his plea of misnomer, the State filed its written motion to strike said plea, and upon consideration thereof it is considered and adjudged by the court that said motion be, and hereby is granted to and that said plea of misnomer be, and hereby is, stricken." The motion to strike the plea was based upon eight specific grounds, some of which, notably ground 7, was well taken, therefore the court's action in this connection must be sustained.

It will be noted the indictment in this case conforms to the provisions of section 4537 of the Code 1923, as to the name of defendant Lynum. It is therein provided: "The indictment must be certain as to the person charged; but when his name is unknown to the grand jury, it may be so alleged without further identification." The following authorities sustain the trial court's action in striking the plea. Axelrod v. State, 7 Ala.App. 61, 60 So. 959; Oliveri v. State, 13 Ala.App. 348, 69 So. 359, and cases cited; Glenn v. State (Ala.App.) 158 So. 198; Hughes v. State, 22 Ala.App. 344, 115 So. 697. The cases cited by appellant's counsel, to wit, Benton v. State, 24 Ala.App. 441, 136 So. 428, and others, differ from the case at bar, in that the indictment in those cases did not contain the allegation, "whose name is to the grand jury otherwise unknown."

The evidence in this case was in sharp conflict, therefore a jury question; and the court properly refused to defendants the general affirmative charge which they requested in writing.

The attending physician, Dr. L.B. Farish, testified that Youngblood, the deceased named in the indictment, was brought to the hospital on Sunday afternoon and that he arrived there with a broken neck, and that meningitis, which was the result of his broken neck, caused his death. This witness also testified, "And there were a good many bruises in and about his face and forehead, *** there was a pretty severe wound in his forehead. And there were some places on his back and hips that were bruises or scalds or bed sores." This witness, Dr. Farish, also testified that on the following Wednesday, before he died on Friday, "I advised him of the seriousness of his condition.

He asked me if I did not think he was going to die, and he said, 'I realize I cannot get well.' He said, 'I realize I cannot get well and I think I should tell what really happened.' I told him I was glad he felt that way; that it relieved me of the responsibility of having to tell him he could not get well." This witness then proceeded without objection to relate the statement made at that time to him by Youngblood. The witness stating: "He first said: 'These boys that were with me.' He said Pete Lynum and the Sawyer boy. He said they asked him to get some whisky for them, and he told them he had no money, and he said one of the boys told him, 'I know you have, because I saw a merchant pay you some money,' and he said he undertook to get away from them, and ran, and they overtook him and kicked him and hit him, and beat him, and drug him about 100 yards into a gully. I would not say that is the exact words he used, but that is substantially what he said."

The record shows that Youngblood, the injured party, also made a statement, apparently on the same day, to one B.H. Nall, a justice of the peace. Nall was introduced as a witness, and without objection testified as follows:

"My name is B.H. Nall. I am a Justice of the Peace, and live at Atmore. I was such an officer on December 20th, 1933. I did not know Mr. Youngblood. I was called to the hospital by Dr. Farish to take the statement of some one who he represented to be Mr. Youngblood. He was in the hospital at that time. He made a statement to me as to the cause of his injuries. *** He did not make but one statement to me, and that was when Dr. Farish came and got me to go to the hospital. I took his statement down in writing.

"This is the statement he made. He said he was in his right mind and realized he must die, or thought he would die from the injuries he had, and that he wanted to make a statement. Realized was the real word he used. He said he left Frisco City about ten o'clock on Saturday night, and that the boys names were some Sawyer and Mr. Lynum. I remember Pete Lynum. He said they were Jay Sawyer and Pete Lynum.

"He said he didn't want to go after the whisky and tried to get away from them and go home and they caught him and drug him down or got him down, and

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