Boyd v. State

45 So. 591, 153 Ala. 41, 1908 Ala. LEXIS 7

• Court: Supreme Court of Alabama
• Decided: January 23, 1908
• Status: Published

Opinion

DENSON, J.

There is no merit in the demurrer to the indictment, and the action of the court in overruling it was errorless. — Thomas’ Case, 117 Ala. 84, 23 South. 659; Rowland’s Case, 140 Ala. 142, 37 South. 245.

Conceding, without deciding, that the fact that Par-ham (the person alleged to have been robbed) was on a visit to Montgomery was immaterial to the issue, wé cannot see Iioav proof of it could have influenced the jury to the detriment of the defendant; and the exception taken by the defendant to the action of the court in allowing proof of it cannot avail anything.

It was permissible for the state to pro\’e by others than Parham that he had money on his person shortly prior to the robbery; and to do this it was competent to sIioav that he was spending money in a nearby saloon, whence he went in a short time to the place Avliere he was robbed, and that he drew out his pocketbook at the saloon (McLean’s bar), and was seen with money out in front of the saloon. Furthermore, the evidence of McLean and of the defendant himself affords an inference that the defendant was present at the time Par-ham exhibited his money.

' If there was error in the ruling of the court disallowing defendant to prove that a charge was “docketed” against Parham at police headquarters, or that “they” had convicted him of disorderly conduct, it is shown to have been error without injury, as the witness immediately testified that he was found guilty “for being drunk and down.”

In answer to questions propounded by the defendant’s counsel, Parham testified that “after swearing out the warrant in this matter he [Parham] ivent to his home in Crenshaw county, and did not return to the preliminary trial for a long time afterwards.” It was competent for the state, in rebuttal, to explain his long stay by proof that he ivas afflicted during the time with rheumatism.

The witness Julia Evans having testified that she knew defendant when she saw him, the defendant’s counsel said: “We except. The defendant is not in court.” The court immediately excluded the answer of the witness, whereupon the defendant’s counsl said: “I except to the very fact that she testified before the defendant came into court.” The defendant was only temporarily absent, and, the only answer given by the witness during his absence having been excluded, there remained nothing upon which to base an exception. The exception was frivolous.

Whether or not a witness placed under the rule, who afterwards remains where he can hear the evidence as it is detailed from the stand by other witnesses in violation of the rule, may be permitted to testify, is a matter which rests in the discretion of the trial Court.— Braham’s Case, 143 Ala. 28, 39, 38 South. 919, and cases there cited.

The charges refused to the defendant were properly refused. Charges 2 and 3 are mere arguments, while charge 10 is invasive of the jury’s province.

No error having been shown the judgment of conviction is affirmed.

Affirmed.

Tyson, C. J., and Haralson and Simpson, JJ., concur.