Smith v. State, 5 Div. 216
| Decision Date | 28 April 1987 |
| Docket Number | 5 Div. 216 |
| Citation | 507 So.2d 579 |
| Parties | Carl Rupert SMITH v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Morgan Reynolds, Clanton, for appellant.
Don Siegelman, Atty. Gen., and Beth Slate Poe, Asst. Atty. Gen., for appellee.
Carl Rupert Smith was convicted for escape in the first degree and sentenced to ninety-nine years' imprisonment as a habitual felony offender. Two issues are raised on this appeal from that conviction.
Smith contends that the trial court committed reversible error because it failed to inform the jury of his plea of not guilty prior to the commencement of the trial or the taking of testimony. At the beginning of his oral charge to the jury, after the presentation of all the evidence in the case, the trial judge did read the indictment and did instruct the jury that Smith had pleaded not guilty. The record also shows that on a date prior to trial, Smith was arraigned and pleaded not guilty.
This issue was not preserved for appeal because the record contains no objection raising this matter. Even arraignment and plea can be waived by a defendant's failure to object to the lack thereof until after the jury has returned a verdict. Marsden v. State, 475 So.2d 588 (Ala.1984); Watts v. State, 460 So.2d 204 (Ala.1983). Furthermore, a plea may be taken "at any time before or during the trial before the jury retired." Newsome v. State, 49 Ala.App. 248, 251, 270 So.2d 680 (1972).
Chilton County Chief Deputy Sheriff Benny Mims was properly allowed to testify to the effect that Smith escaped on April 21, 1985, and was captured on July 1, 1986.
In a prosecution for escape from hard labor, "[i]t was competent for the state to prove where the defendant was captured, and when he was brought back, as tending to show that he had run away from the hard labor." Bowden v. State, 19 Ala.App. 377, 379, 97 So. 467 (1923).
Bowles v. State, 58 Ala. 335, 338 (1877).
See Sweatt v. State, 156 Ala. 85, 47 So. 194, 195 (1908) (). "The state is...
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