Dennison v. State

Alabama Court of Appeals

Dennison v. State

72 So. 589, 15 Ala. App. 84, 1916 Ala. App. LEXIS 112

CourtAlabama Court of Appeals

DecidedAugust 1, 1916

StatusPublished

Cited by5 cases

This text of 72 So. 589 (Dennison v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Dennison v. State, 72 So. 589, 15 Ala. App. 84, 1916 Ala. App. LEXIS 112 (Ala. Ct. App. 1916).

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Opinion

BROWN, J.

(1, 2) Under the ruling of this court in Maddox v. State, 2 Ala. App. 244, 57 South. 95, the indictment sufficiently stated the substance of the proceeding in which the-alleged false testimony was given, and was not subject to the objection made by the demurrer. — Johnson v. State, 3 Ala. App. 101, 57 South. 389; Hicks v. State, 86 Ala. 30, 5 South. 425; Jackson v. State, 156 Ala. 162, 47 South. 77; Bradford v. State, 134 Ala. 141, 32 South. 742. The proceeding in which the alleged, false testimony was given is described in the indictment as: “A cause pending in the chancery court of Elmore county, Ala., wherein J. M. Holley, attorney, was complainant and N. B. Sewell' was defendant.”

On the trial the state, over timely and appropriate objections, was allowed to introduce a copy of the defendant’s testimony, the loss of the original being shown, in a case, entitled, “J. M. Holley, Attorney, v. N. B. Sewell, et al.,” in the chancery court of Elmore county. This identical point was presented in Walker v. State, 96 Ala. 53, 11 South. 401, where the court held that' there was a fatal variance between the allegation and proof. The description of the proceedings in which the alleged false testimony was given was a matter of substance and descriptive- *86 of the offense charged in the indictment (McClerkin v. State, 105 Ala. 107, 17 South. 123; Jackson v. State, supra; Jacobs v. State, 61 Ala. 448), and the prosecution must prove the causé laid in the indictment.

(3) In Harwell v. State, 12 Ala. App. 265, 68 South. 500, where the testimony of a witness on a former trial was offered, it was held to be reversible error for the court to permit the jury to take with them in their deliberations a complete report of the testimony embracing the testimony of witnesses not offered, and the correct practice in such cases was there indicated. The record here shows that: “The copy of the testimony of W. L. Dennison, in the case of J. M. Holley, Attorney, v. N. B. Newell, et ah, Respondent, in the chancery court of Elmore county, was then introduced in evidence, and was submitted to the jury, bound together with the testimony of a number of other witnesses in the same case and the testimony of said W. L. Dennison in said case read as follows.”

This does not affirmatively show that the jury was allowed to take all this other testimony with them into the jury room, and therefore reversible error is not shown in this respect.

(4) The court erred in allowing the prosecutor to show what other causes were pending in the chancery court at the time this testimony was given. This was not material, and the proof that no such cause as described in the indictment was pending at the time could not cure the variance between the averments and proof disclosed by the proof already offered.

The defendant was entitled to the- affirmative charge on account of the variance between the allegations and proof. The point was made by objection to the evidence, as required by rule 35, circuit court practice, and was renewed by the request of this charge.

The other two charges refused to defendant should have been given.

Reversed and remanded.

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BROWN, J.

(1, 2) Under the ruling of this court in Maddox v. State, 2 Ala. App. 244, 57 South. 95, the indictment sufficiently stated the substance of the proceeding in which the-alleged false testimony was given, and was not subject to the objection made by the demurrer. — Johnson v. State, 3 Ala. App. 101, 57 South. 389; Hicks v. State, 86 Ala. 30, 5 South. 425; Jackson v. State, 156 Ala. 162, 47 South. 77; Bradford v. State, 134 Ala. 141, 32 South. 742. The proceeding in which the alleged, false testimony was given is described in the indictment as: “A cause pending in the chancery court of Elmore county, Ala., wherein J. M. Holley, attorney, was complainant and N. B. Sewell' was defendant.”

On the trial the state, over timely and appropriate objections, was allowed to introduce a copy of the defendant’s testimony, the loss of the original being shown, in a case, entitled, “J. M. Holley, Attorney, v. N. B. Sewell, et al.,” in the chancery court of Elmore county. This identical point was presented in Walker v. State, 96 Ala. 53, 11 South. 401, where the court held that' there was a fatal variance between the allegation and proof. The description of the proceedings in which the alleged false testimony was given was a matter of substance and descriptive- *86 of the offense charged in the indictment (McClerkin v. State, 105 Ala. 107, 17 South. 123; Jackson v. State, supra; Jacobs v. State, 61 Ala. 448), and the prosecution must prove the causé laid in the indictment.

(3) In Harwell v. State, 12 Ala. App. 265, 68 South. 500, where the testimony of a witness on a former trial was offered, it was held to be reversible error for the court to permit the jury to take with them in their deliberations a complete report of the testimony embracing the testimony of witnesses not offered, and the correct practice in such cases was there indicated. The record here shows that: “The copy of the testimony of W. L. Dennison, in the case of J. M. Holley, Attorney, v. N. B. Newell, et ah, Respondent, in the chancery court of Elmore county, was then introduced in evidence, and was submitted to the jury, bound together with the testimony of a number of other witnesses in the same case and the testimony of said W. L. Dennison in said case read as follows.”

This does not affirmatively show that the jury was allowed to take all this other testimony with them into the jury room, and therefore reversible error is not shown in this respect.

(4) The court erred in allowing the prosecutor to show what other causes were pending in the chancery court at the time this testimony was given. This was not material, and the proof that no such cause as described in the indictment was pending at the time could not cure the variance between the averments and proof disclosed by the proof already offered.

The defendant was entitled to the- affirmative charge on account of the variance between the allegations and proof. The point was made by objection to the evidence, as required by rule 35, circuit court practice, and was renewed by the request of this charge.

The other two charges refused to defendant should have been given.

Reversed and remanded.

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72 So. 589, 15 Ala. App. 84, 1916 Ala. App. LEXIS 112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dennison-v-state-alactapp-1916.

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