Estes v. State

• Decision Date: 20 June 1922
• Docket Number: 6 Div. 970.
• Citation: 93 So. 217,18 Ala.App. 606
• Parties: ESTES v. STATE.
• Court: Alabama Court of Appeals

93 So. 217

18 Ala.App. 606

ESTES v. STATE.

6 Div. 970.

Court of Appeals of Alabama

June 20, 1922

Appeal from Circuit Court, Cullman County; R. C. Brickell, Judge.

Lina Estes, after a trial jointly with Parrish Gray, was convicted of manslaughter in the second degree, and she appeals. Reversed and remanded.

W. E James and A. A. Griffith, both of Cullman, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

SAMFORD J.

It is first insisted by appellant that the judgment rendered by the court is either void or voidable; the same not being based on the verdict of a jury. Upon reference to the judgment entry we find the following as a part thereof:

"Thereupon came a jury of good and lawful men, to wit Ed Kretzschmer and 11 others, who, being impaneled and sworn according to law, upon their oaths do say, We, the jury, find the defendant Parrish Gray not guilty. It is therefore considered and adjudged by the court that he is not guilty. It is therefore ordered by the court that he be and is hereby discharged. We, the jury, further find the defendant Lina Estes guilty, and assess her fine at $1 and imprisonment in the county jail for one hour. It is therefore considered and adjudged by the court that the defendant Lina Estes is guilty as charged, and it is further ordered and adjudged by the court that the defendant Lina Estes be imprisoned in the county jail of Cullman county, Ala., for one hour as additional punishment for said offense."

Then follows a confession of judgment for the fine and costs, and a judgment against the defendant and her sureties for the fine and costs. It would be hard to conceive of a more "jumbled" judgment than appears in the record in this case; but, in line with the liberal construction obtaining in this state, we are constrained to hold that the judgment as it appears is sufficient. It is easy to ascertain what part of the minute entry relates to the verdict of the jury and the part relating to the judgment of the court. When so considered, we have a verdict of a jury ascertaining guilt, and a judgment of the court following the verdict. That the word "additional" appears before the word "punishment" is of no moment, being surplusage. There is nothing in the case of Jones et al. v. State, 16 Ala. App. 477, 79 So. 151, contrary to the above view.

It is not necessary, in cases of misdemeanor, for the court to ask the defendant, before sentence, "if he has anything to say why sentence of the law should not now be pronounced." Crawford v. State, 16 Ala. App. 68, 75 So. 274.

It is the law that courts, without being requested to do so in writing by one of the parties, may not charge upon the effect of the evidence. Code 1907, § 5362. But in this case we have carefully read the charge of the court, as it appears in the record, and do not find that the trial judge violated this rule in delivering his charge to the jury. When the excerpts from the court's oral charge, to which exceptions were taken, are considered in connection with the entire charge as given, they assert correct propositions of law and are free from error.

It was perfectly proper for the court to read to the jury section 21, p. 642, of the Acts of 1911, defining the law and fixing the rule as to recklessness in driving automobiles along the highways of the state, and to explain its meaning to the jury. That the act contained a clause to the effect that driving an automobile at a greater rate of speed than 30 miles an hour, when there was no evidence...