Davis v. State

Supreme Court of Alabama

Davis v. State

48 So. 694, 159 Ala. 104, 1909 Ala. LEXIS 656

CourtSupreme Court of Alabama

DecidedFebruary 4, 1909

StatusPublished

Cited by2 cases

This text of 48 So. 694 (Davis v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Alabama primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Davis v. State, 48 So. 694, 159 Ala. 104, 1909 Ala. LEXIS 656 (Ala. 1909).

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Opinion

DENSON, J.

The defendant, convicted and sentenced to be hanged for the crime of robbery, has appealed from the judgment of conviction.

The indictment contains three counts, all of which charge the crime of robbery in Code form. The first and second counts were eliminated by charges given at the defendant’s request. Defendant offered no evidence, [107]*107while that of the state makes a clear and aggravated case of robbery, as charged in the third count of the indictment.

If the court erred in its first ruling, admitting in evidence the two pieces of “iron or slag” found and picked np by witness Newsome at the place where the robbery was committed, the error was cured by subsequent evidence of identification, which was sufficient to authorize their admission in evidence, and upon which it was the province of the jury to determine whether they had formed the identical piece of “iron or slag” which Domby testified defendant picked up on the railroad, and also to determine whether it was the implement used by defendant in striking Domby. — Mitchell’s Case, 94 Ala. 68, 10, South. 518; Ezell’s Case, 103 Ala. 8, 15 South. 818; Thornton’s Case, 113 Ala. 43, 21 South. 356, 59 Am. St. Rep. 97.

Whether or not it was competent for Domby to testify that he ivas not willing for the defendant to take his money we need not decide, as it ivas competent for him to testify that he did not consent for him to do so.— Jones v. State, 104 Ala. 30, South. 135. The question objected to called upon the witness to testify whether he was willing or consented for the defendant to take his money; and, part of the question being good, the objection was properly overruled.

The' record has had that consideration which the great importance of the case entitles it to; and, having found no error therein, we hold that the judgment of conviction must be affirmed.

Affirmed.

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

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DENSON, J.

The defendant, convicted and sentenced to be hanged for the crime of robbery, has appealed from the judgment of conviction.

The indictment contains three counts, all of which charge the crime of robbery in Code form. The first and second counts were eliminated by charges given at the defendant’s request. Defendant offered no evidence, [107]*107while that of the state makes a clear and aggravated case of robbery, as charged in the third count of the indictment.

If the court erred in its first ruling, admitting in evidence the two pieces of “iron or slag” found and picked np by witness Newsome at the place where the robbery was committed, the error was cured by subsequent evidence of identification, which was sufficient to authorize their admission in evidence, and upon which it was the province of the jury to determine whether they had formed the identical piece of “iron or slag” which Domby testified defendant picked up on the railroad, and also to determine whether it was the implement used by defendant in striking Domby. — Mitchell’s Case, 94 Ala. 68, 10, South. 518; Ezell’s Case, 103 Ala. 8, 15 South. 818; Thornton’s Case, 113 Ala. 43, 21 South. 356, 59 Am. St. Rep. 97.

Whether or not it was competent for Domby to testify that he ivas not willing for the defendant to take his money we need not decide, as it ivas competent for him to testify that he did not consent for him to do so.— Jones v. State, 104 Ala. 30, South. 135. The question objected to called upon the witness to testify whether he was willing or consented for the defendant to take his money; and, part of the question being good, the objection was properly overruled.

The' record has had that consideration which the great importance of the case entitles it to; and, having found no error therein, we hold that the judgment of conviction must be affirmed.

Affirmed.

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

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Bluebook (online)

48 So. 694, 159 Ala. 104, 1909 Ala. LEXIS 656, Counsel Stack Legal Research, https://law.counselstack.com/opinion/davis-v-state-ala-1909.

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