Scott v. State
| Decision Date | 17 June 1969 |
| Docket Number | 1 Div. 332 |
| Citation | 45 Ala.App. 149,227 So.2d 436 |
| Parties | Donald SCOTT v. STATE. |
| Court | Alabama Court of Appeals |
Thomas M. Haas, Mobile, for appellant.
MacDonald Gallion, Atty. Gen., and Richard F. Calhoun, Asst. Atty. Gen., for the State.
This is an appeal from a conviction of assault with a pistol, a misdemeanor. Code 1940, T. 14, § 33. Scott was fined $50.00 to which the trial judge added 90 days hard labor with suspension of sentence during good behavior for twenty-four months. Holman v. State, 43 Ala.App. 509, 193 So.2d 770.
The facts are simple; they either tend to exonerate or to convict. Under familiar principles, we must take that version which upholds the verdict below.
Briefly, Scott went to the home of one Charles Harrington and presented a pistol. Thereupon, whilst holding the gun on his victim, he struck with a blackjack. Scott's object was to collect money from Harrington.
Scott denied this assault (and battery) and also adduced a witness who stated with Harrington enjoyed a bad reputation for truth and veracity.
The only point argued by appellant is that the statute of limitations had already run by the time the District Attorney filed his complaint De novo in the Circuit Court.
The offense was committed January 6, 1967. The Circuit Court complaint was filed March 21, 1968.
But the appeal bond to remove the case to the Circuit Court recites a judgment rendered January 27, 1967, by the Recorder of Mobile. Code 1940, T. 37, § 594. Hence, we infer and therefore presume that an originating warrant or summons was issued out of the Recorder's Court within three weeks after the alleged assault.
At common law, the lapse of time in prosecution was no bar: Nullum tempus occurrit regi. Kenny's Outlines of Criminal Law (17th ed.) 508. Hale, 2 P.C. 72, calls the arrest the first instance of prosecution.
Code 1940, T. 15, § 225 gives three points of beginning viz. indictment, issuance of warrant, or binding over. See Richardson v. State, 215 Ala. 318, 111 So. 204.
Code 1940, T. 15, § 222 reads as follows:
'The prosecution of all misdemeanors before the circuit, or county court, unless otherwise provided, must be commenced within twelve months next after the commission of the offense'.
We hold that the original arrest (i.e., between January 6 and 27, 1967) tolled the running of the statute because the prosecution began then. The Recorder's acting under § 594, supra, made his court ad hoc a 'county court' within the meaning of § 222, supra. See discussion in Herrmann v. Robinson, 43 Ala.App. 442, 192 So.2d 251.
For the purpose of beginning prosecution under § 222, supra, the appeal to the Circuit Court was but the continuation of the prosecution before the Recorder. See Ross v. State, 55 Ala. 177(2); and § 225, supra.
The de novo complaint required of the District Attorney is only an essential part of a skein of the prosecution. Indeed trial may be had in the Circuit Court on the lower court complaint. Taylor v. Decatur, 40 Ala.App. 571, 117 So.2d 786. Here action began with issuance of the warrant, which one statement in court said was issued January 13, 1967.
Delay between the Recorder's court and the Circuit Court trial is not shown to have been complained of by any demand in the nature of one for speedy trial.
On Rehearing
Counsel for Scott contends that we have overlooked the following adverse ruling of the trial judge shown at Page 24 of the record:
'Q Did he ever pull the trigger on the gun?
'A If he did, I don't know it; it didn't shoot you know what I mean.
'Q Didn't shoot?
'A No, sir.
We consider that the ruling of the trial judge in sustaining State's second objection was eminently correct. We construe Mr. Haas's question as seeking to find out if the witness Harrington was cognizant of the mental processes or visible outward manifestations thereof exhibited by the defendant. The question was too vague and, therefore, was objectionable.
The appellant complains of the language used in the next to the last paragraph of our opinion on original deliverance to the effect that the defendant did not complain of the lack of a speedy trial after he got into circuit court.
Counsel points out that Scott, on the 30th day of ...
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