Shirley v. State

• Decision Date: 08 February 1906
• Citation: 144 Ala. 35,40 So. 269
• Parties: SHIRLEY ET AL. v. STATE.
• Court: Alabama Supreme Court

40 So. 269

144 Ala. 35

SHIRLEY ET AL. v. STATE.

Supreme Court of Alabama

February 8, 1906

Appeal from Circuit Court, Monroe County; John T. Lackland Judge.

"To be officially reported."

Isaac Shirley and another were convicted of assault with intent to murder, and appeal. Affirmed.

On the trial the state ofered to introduce a written testimony of J P. Klausen, taken down at the preliminary hearing and subscribed by him. As a predicate for the introduction of this testimony the state offered D. K. Smith, who testified that he knew J. P. Klausen, who testified on the preliminary trial of the defendants before Judge Stallworth; that when he so testified Klausen was a resident citizen of the state of Florida; that since the preliminary trial witness had visited Klausen at his home in Florida; and that Klausen lived in Florida the last time witness had known of him, although he did not know where he was at the particular time of this trial. Upon this predicate, the trial court permitted the written testimony to be read to the jury.

The solicitor in his argument, in commenting on the testimony stated "that the husband was dead, and had crossed the river." Defendant objected to this. The court overruled the objection.

The defendant requested the court to give the following charges which were refused by the court:

"(B) The court charges the jury that, before you can convict any or all of the defendants in this case, you all and each one of you must separately and individually believe from the evidence beyond all doubt that they are guilty as charged in the indictment before you can convict any or all of them for assault with intent to murder; and if you do not so believe from the evidence then you must acquit the defendants of assault with intent to murder."

"(5) The court charges the jury that it is your duty to weigh all the evidence in the case, and if, after looking at and weighing all the evidence in the case, you can say that you have an abiding conviction that the defendants cannot be innocent, you should acquit the defendants."

"(7) The court charges the jury that before you can convict the defendant you must be satisfied to a moral certainty, not only that the proof is consistent with the defendants' guilt, but that it is wholly inconsistent with every other rational conclusion; and unless the jury are so convinced by the evidence of the defendants' guilt that you would each venture to act upon that decision in matters of the highest concern and importance to his own interest, than you must find the defendants not guilty."

At the conclusion of the argument and charge of the court, the solicitor handed the written testimony of J. P. Klausen to the jury. The defendant objected to its being taken out by the jury on the ground that it was read to the jury during the trial, and also on the ground that on the back of this same paper was the testimony of other witnesses. The court, after erasing with pencil the evidence of the other witnesses and instructing the jury that they were not to consider the erased evidence for any purpose whatever, and that it was no part of the evidence before them, permitted the jury to take out to their room the written evidence of Klausen.

Stallworth & Burnett and J. A. Stallworth, for appellant.

Massey Wilson, Atty. Gen., for the State.

DENSON J.

At the fall term, 1903, of the circuit court held for the county of Monroe, Isaac Shirley, Jesse Shirley, and Joseph Shirley were separately indicted for an assault with intent to murder Jim Smith. The cases were tried at an adjourned term of the court held in July and August, 1905. By an agreement made between the solicitor and counsel for the defendants the three cases were tried jointly. The record shows that Jesse and Isaac were convicted, and each sentenced to the penitentiary for a term of 20 years. They appealed.

The record fails to show a formal adjudication of the defendants' guilt upon the verdict rendered by the jury. But the minute entry shows a judgment of sentence by the court in accordance with the verdict. It has been held by this court that this sufficiently implies the judgment of guilt and is a judgment of conviction which will support an appeal. Ex parte Roberson, 123 Ala. 103, 26 So. 645, 82 Am. St. Rep. 107; Talbert's Case, 140 Ala. 96, 37 So. 78; Driggers' Case, 123 Ala. 46, 26 So. 512; Wilkinson's Case, 106 Ala. 28, 17 So. 458. Following these authorities, it must be held that the judgment is sufficient.

Before entering on the trial the defendant moved a quashal of the indictments and that they be stricken from the files. The motion was rested on the fact that the minute entry showing the organization of the court at the fall term, 1903, the term at which the indictments were preferred, failed to show that a foreman of the grand jury was appointed as required by section 5022 of the Code of 1896; and upon the further ground that the number of the grand jurors at the said term was reduced to 14 and section 5023 of the Code of 1896 was not complied with in making up the deficiency. The motion was overruled. The defects in the organization of the grand jury pointed out in the motion to quash the indictments went to the formation of the grand jury. Such defects fall within the curative terms of section 5269 of the Code of 1896 as construed in Billingslea's Case, 68 Ala. 486. Consequently the court properly overruled the motion to quash the indictment. Phillips' Case, 68 Ala. 469; Thompson's Case, 122 Ala. 12, 26 So. 141; Dunn's Case, (Ala.) 39 So. 147; Hall's Case, 134 Ala. 90, 32 So. 750. This renders it unnecessary to consider any question raised on the rulings of the court on the admissibility of evidence on the trial of the motion to quash and on the nunc pro tunc proceedings.

The evidence tended to show that Jim Smith, the person named in the indictment, was shot in his house on the night of August 8, 1903, while he and his family were at the supper table and that it was a bright moon-light night. The wife of Smith, inter alia, testified that she heard the dog bark; that she got up and...