Stanfield v. State

• Decision Date: 18 January 1912
• Citation: 3 Ala.App. 54,57 So. 402
• Parties: STANFIELD ET AL. v. STATE.
• Court: Alabama Court of Appeals

57 So. 402

3 Ala.App. 54

STANFIELD ET AL. v. STATE.

Court of Appeals of Alabama

January 18, 1912

Appeal from Circuit Court, Tallapoosa County; A. E. Gamble, Judge.

John Stanfield and Ab Stanfield were convicted of assault and battery, and appeal. Judgment corrected and affirmed.

T. L. Bulger, George A. Sorrell, and N. D Denson, for appellants.

R. C. Brickell, Atty. Gen., and W. L. Martin Asst. Atty. Gen., for the State.

PELHAM, J.

The defendants were jointly indicted and tried for an assault with intent to murder, and the jury returned a verdict finding the defendants guilty of an assault and battery leaving the punishment to be fixed by the court. The court sentenced each of the defendants to hard labor for the county for six months, and an additional term to cover the costs of the prosecution at the rate of 40 cents per day.

The term of the circuit court at which the defendants were tried was authorized to continue for three weeks (Code, § 3235) and the record shows the trial to have been had during the second week. The defendants made no objection to being tried during the second week of the term, but counsel urge in their brief that the court committed reversible error in putting the defendants on trial during the second week of a term of court authorized to continue three weeks, because section 3248 of the Code provides, when the term of the court is for three weeks, the criminal docket shall be taken up on the third Monday of the term. The statute means only that the criminal docket shall be taken up, and criminal cases given preference over civil business during the week stipulated, and not that the court is without authority or warrant in law to try criminal cases during a prior week of the term. The identical question was raised in Goley v. State, 87 Ala. 57, 6 So. 287, and decided adversely to the contention made by defendant, in his brief. This ruling in Goley's Case has been cited approvingly and affirmed in Hall's Case, 130 Ala. 45, 30 So. 422, and Griffin's Case, 165 Ala. 29, 50 So. 962.

It is also insisted by appellants that, the jury having assessed no fine, the court was without authority to impose a punishment on the defendants based on the jury's verdict finding the defendants guilty of an assault and battery and leaving the punishment to the court. Section 7630 of the Code provides: "When an offense may be punished, in addition to a fine, by imprisonment or hard labor for the county, the jury shall not be required to impose a fine; but, if in their judgment the defendant should only be punished in some other mode, may, in such case, only find him guilty and leave the imposition of the punishment to the court." The offense of which the defendants were convicted is one that may be punished, in addition to a fine, by imprisonment or hard labor for the county. Code, § 6306. The verdict was sufficient to support the judgment of the court imposing a punishment of hard labor within the limitations provided. Golson v. State, 86 Ala. 601, 5 So. 799.

It is the further contention of appellants in brief filed by counsel that the judgment does not affirmatively show that defendants failed to presently pay the costs or confess judgment for the same, and that the sentence therefore rendered against the defendants in lieu of their payment or securing the costs is erroneous. The judgment entry as to each defendant recites that the defendant, being asked by the court if he had anything to say why sentence should not be pronounced upon him, said nothing, and the judgment then recites, "It is therefore considered by the court, and it is the judgment and sentence of the court," etc., that the defendant perform hard labor for the county for six months as punishment for the offense, and an additional term to pay the costs. The words, "It is therefore considered by the court," when followed by the proper statement in a judgment, have often been held to be a determination of the defendant's guilt and a sufficient judgment of conviction. Shirley v. State, 144 Ala. 35, 40 So. 269; Talbert v. State, 140 Ala. 96, 37 So. 78; Roberson v. State, 123 Ala. 55, 26 So. 645; Driggers v. State, 123 Ala. 46, 26 So. 512; Wilkinson v. State, 106 Ala. 23, 17 So. 458; Gray v. State, 55 Ala. 86. If these words are a sufficient determination of guilt, certainly they are a sufficient determination, in the connection in which they are used, that the costs were not presently paid or secured. As said by Denson, J., in rendering the opinion of the court in Shirley v. State, supra: "The record fails to show a formal adjudication of the defendant's 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." And in this case the record fails to show a formal adjudication that the costs were not presently paid or secured by a judgment of the court, but the minute entry shows a judgment of sentence by the court in lieu of the costs having been paid or secured, and it will be held, following the authorities cited, that this sufficiently implies finding a judgment that the costs were not paid or secured.

The question asked one of the defendants when being examined as a witness about the assaulted party, Drake, having a pistol in his hand on an occasion of making threats at a time prior to and disconnected with the difficulty in question, falls within the rule prohibiting a party going into the details of a former difficulty. Gordon v. State, 140 Ala. 29, 36 So. 1009; Harkness v. State, 129 Ala. 71, 30 So. 73; Stitt v. State, 91 Ala. 10, Rutledge v. State, 88 Ala. 85, 7 So. 335; Lawrence v. State, 84 Ala. 424, 5 So. 33; McAnally v. State, 74 Ala. 9; Gray v. State, 63 Ala. 66.

The proposition advanced by counsel in brief, that the testimony of the defendant Stanfield as to the assaulted party having a pistol on different occasions than the assault in question was admissible as corroborative of the defendant's prior testimony, is not tenable. A witness cannot corroborate his own testimony. McKelton v. State, 86 Ala. 594, 6 So. 301; Green v. State, 96 Ala. 29, 11 So. 478; James v. State, 115 Ala. 83, 22 So. 565.

There was no error prejudicial to defendants committed by the court in permitting the state's counsel to ask one of the defendants on cross-examination, against objection because the evidence required by the...