Turner v. State

Decision Date20 June 1957
Docket Number5 Div. 642
Citation266 Ala. 250,96 So.2d 303
PartiesJohn TURNER v. STATE of Alabama.
CourtAlabama Supreme Court

W. C. Hines, La Fayette, for appellant.

John Patterson, Atty. Gen., and Geo. D. Mentz, Asst. Atty. Gen., for the State.

PER CURIAM.

This is an appeal by defendant from a judgment of conviction of burglary in the first degree, and his punishment fixed at twenty-five years imprisonment in the penitentiary. The indictment was returned on the 8th day of September 1955. It contained two counts. One for burglary in the first degree, and the other undertook to charge grand larceny but was defective and eliminated on defendant's plea in abatement.

On September 13, 1955 defendant was duly arraigned and pleaded not guilty, having been represented by counsel. The court set the trial down for September 19, 1955, and ordered a special venire as required by law, and directed that a copy of the indictment be served on defendant as the law requires. The venire was drawn and on September 19, 1955 defendant and his counsel appeared and objected to trial on the ground that the copy of the indictment which had been served on defendant contained an error and was not a true copy. The court thereupon reset the trial for September 22, 1955, and ordered a true copy of the indictment served on defendant. This was done accordingly and a correct copy served on defendant for one entire day prior to the trial. Section 63, Title 30, Code of 1940. On September 22, 1955 defendant objected to a trial because the court did not again arraign him after resetting the trial. This was unnecessary. Howard v. State, 165 Ala. 18, 50 So. 954; Davis v. State, 259 Ala. 212(217), 66 So.2d 714. The court properly overruled the objection.

The trial was then duly and regularly had with a jury of good and lawful men, resulting in a verdict of conviction of burglary in the first degree which fixed his punishment at twenty-five years service in the penitentiary. There was a judgment of conviction in due form except that it adjudged defendant guilty of robbery in the first degree. From that judgment defendant duly appealed to this court. Since that appeal was taken, the State, with this court's permission, filed a motion in the circuit court to amend the judgment nunc pro tunc so as to correct and make the judgment of conviction conform to the verdict of guilty of burglary instead of robbery. That motion was duly heard by the circuit court and was granted and the judgment corrected. All of that proceeding has been duly certified to this court. That was the proper procedure (Bailey v. State, 253 Ala. 553, 45 So.2d 785; Lewis v. State, 10 Ala.App. 31, 64 So. 537), and the statutory requirements appear to have been observed. Sections 566, 567, Title 7, Code of 1940. In that respect there is no reversible error apparent.

The trial, as shown by the record, was regular in all respects and according to law. There was ample evidence of the commission of the crime by someone and it was sufficient for the jury to find that defendant was the guilty party.

At the close of the evidence for the State the defendant moved the court to exclude all of the state's evidence and discharge defendant, and then observed: 'I will give you some grounds for it if you want them'. There was apparently a discussion which is not set out in the record. The court then overruled the motion and defendant excepted. While the trial court will not be put in error for overruling such motion without setting out the grounds on which the motion is based (Carroll v. State, 36 Ala.App. 59, 52 So.2d 171; Sullivan v. State, 38 Ala.App. 340, 83 So.2d 259), as we have stated, the evidence was...

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22 cases
  • Marks v. State, No. CR-06-0412 (Ala. Crim. App. 8/31/2007)
    • United States
    • Alabama Court of Criminal Appeals
    • 31 August 2007
    ...It is sufficient that the defendant state the ground that the prosecution has failed to make a prima facie case. Turner v. State, 266 Ala. 250, 96 So. 2d 303 (1957); see also, R. Williams, Williams' Alabama Evidence § 308 Ex parte Maxwell, 439 So. 2d at 717. See also Ex parte Parks, 923 So.......
  • Steele v. State, 1 Div. 351
    • United States
    • Alabama Court of Criminal Appeals
    • 24 March 1987
    ...It is sufficient that the defendant state the ground that the prosecution has failed to make a prima facie case. Turner v. State, 266 Ala. 250, 96 So.2d 303 (1957); see also, R. Williams, Williams' Alabama Evidence § 308 Ex parte Maxwell, 439 So.2d 715, 717 (Ala.1983). Because the defense c......
  • Stemple v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 15 November 1977
    ...that judge marked them "refused" and signed his name on them. Strickland v. State, 269 Ala. 573, 114 So.2d 407 (1959); Turner v. State, 266 Ala. 250, 96 So.2d 303 (1957); Watkins v. State, 50 Ala.App. 111, 277 So.2d 385, cert. denied, 291 Ala. 801, 277 So.2d 389 Defense counsel filed a moti......
  • McGee v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 26 February 1980
    ...a motion to exclude evidence where no grounds are assigned. Espey v. State, 270 Ala. 669, 120 So.2d 904 (1960); Turner v. State, 266 Ala. 250, 96 So.2d 303 (1957); Skelton v. City of Birmingham, Ala.Cr.App., 368 So.2d 877, cert. denied, Ala., 368 So.2d 880 (1979). In addition, the appellant......
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