Hammond v. State

45 So. 654, 154 Ala. 81, 1908 Ala. LEXIS 529

• Court: Supreme Court of Alabama
• Decided: February 6, 1908
• Status: Published

Opinion

ANDERSON, J.

The defendant waived the right to a trial by jury by failing to make the demand for same before the first jury term of the court after his arrest.— Acts 1896-97, pp. 807, 813, §§ 10, 25.

The trial court erred in permitting the witness Nelmes to testify, over the objection of the defendant : “I did not see where the pistol came from; but it is my judgment that he took it out of his pocket.” The witness stated the circumstances and surroundings, and what he saw; and it Avas his opinion or conclusion that the defendant took it out of his pocket, as he said he did not see him get it out of his pocket. It Avas for the jury, or the court sitting without a jury, in this case to determine whether or not he got it out of his pocket. This evidence is unlike that in the case of Mayberry v. State, 107 Ala. 64, 18 South. 219.

Whether the court committed reversible error in not arraigning the defendant and giving him a chance to plead, before interposing the plea for him, \ve need not decide, as the case must be reversed because of the error above pointed out, and this irregularity need not occur upon the next trial. It is a safe practice to read or state the indictment to the accused, and give him a chance to plead thereto, before entering into the trial.

The judgment of the county court is reversed, and the cause is remanded.

Reversed and remanded.

Tyson, O. J., and Dowdell and McClellan, JJ., concur.