Holman v. State

Supreme Court of Alabama

Holman v. State

39 So. 646, 144 Ala. 95, 1905 Ala. LEXIS 65

CourtSupreme Court of Alabama

DecidedJune 30, 1905

StatusPublished

Cited by14 cases

This text of 39 So. 646 (Holman 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

Holman v. State, 39 So. 646, 144 Ala. 95, 1905 Ala. LEXIS 65 (Ala. 1905).

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Opinion

ANDERSON, J.

Th act creating the Genevay county court has been held by this court to be valid and not repugnant to the Constitution. — Ex parte Black, in MS.

“An affidavit is a statement of facts under oath, reduced to writing and certified to by .the officer before whom the sáme is made. It is usually, though not necessarily, unless required by statute, signed by the affiant.” — State v. Sullivan, 39 S. R. 400; 1 Am. & Eng.Ency Law, 909. Section 4600 of the Code of 1896 does not require that the affidavit should be signed by the affiant. Besides this objection was not raised until the defendant had plead “not guilty,” and the trial had been entered upon.

The defendant cannot complain because the affidavit does not recite that the affiant has probable couse for believing, etc., as it is more emphatic and certain than is required by the statute, and charges “that the defendant did carry a pistol concealed on his person.”

The court erred in excluding that portion of the evidence set out in the showing of the absent Avitness Garner, as designated in the bill of exceptions. It was probably not relevant to show what became of a pistol the defendant had the day previous, when in Florida, but when taken with the other evidence excluded with it, “that he, Holman did not get the pistol back again and that he had no other pistol except this one; that he had opportunity to see and observe Mr. Holman, and was with him the whole time' day and night,” as it Avas contradictory of the State’s evidence and should have been considered by the jury.

For this error the judgment is reversed and the cause remanded.

McClellan, C. J., Tyson, Dowdell, Simpson and Denson, JJ., concurring.

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ANDERSON, J.

Th act creating the Genevay county court has been held by this court to be valid and not repugnant to the Constitution. — Ex parte Black, in MS.

“An affidavit is a statement of facts under oath, reduced to writing and certified to by .the officer before whom the sáme is made. It is usually, though not necessarily, unless required by statute, signed by the affiant.” — State v. Sullivan, 39 S. R. 400; 1 Am. & Eng.Ency Law, 909. Section 4600 of the Code of 1896 does not require that the affidavit should be signed by the affiant. Besides this objection was not raised until the defendant had plead “not guilty,” and the trial had been entered upon.

The defendant cannot complain because the affidavit does not recite that the affiant has probable couse for believing, etc., as it is more emphatic and certain than is required by the statute, and charges “that the defendant did carry a pistol concealed on his person.”

The court erred in excluding that portion of the evidence set out in the showing of the absent Avitness Garner, as designated in the bill of exceptions. It was probably not relevant to show what became of a pistol the defendant had the day previous, when in Florida, but when taken with the other evidence excluded with it, “that he, Holman did not get the pistol back again and that he had no other pistol except this one; that he had opportunity to see and observe Mr. Holman, and was with him the whole time' day and night,” as it Avas contradictory of the State’s evidence and should have been considered by the jury.

For this error the judgment is reversed and the cause remanded.

McClellan, C. J., Tyson, Dowdell, Simpson and Denson, JJ., concurring.

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Bluebook (online)

39 So. 646, 144 Ala. 95, 1905 Ala. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/holman-v-state-ala-1905.

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