Opinion
4 Div. 207.
November 12, 1935. Rehearing Denied December 17, 1935.
Appeal from Circuit Court, Barbour County; J. S. Williams, Judge.
Corbett Arrington was convicted of assault with intent to murder, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in Arrington v. State, 231 Ala. 429, 165 So. 262.
The judgment entry thus shows the verdict:
"We, the jury find the defendant guilty as charged," and thereupon recites: "it is, therefore, considered by the court and it is the judgment of the court that the defendant is guilty as charged in the indictment."
The sentence of the court was:
"It is, therefore, considered by the court and it is the judgment of the court that the defendant is guilty as charged in the indictment. And it is ordered, adjudged and decreed by the court that the defendant be imprisoned in the penitentiary of the State of Alabama for an indeterminate period of not less than three nor more than three and one-half years, the minimum and maximum limits of this sentence being respectively three and three and one-half years."
M. I. Jackson, of Clayton, for appellant.
The judgment is such that it required recourse to other sources to ascertain its effect, and is therefore void. Code 1923, § 8697; Hughes v. State, 117 Ala. 25, 23 So. 677. The verdict is fatally defective in failing to specify the offense of which defendant is found guilty. Kendall v. State, 65 Ala. 492.
A. A. Carmichael, Atty. Gen., and Jas. L. Screws and Wm. H. Loeb, Asst. Attys. Gen., for the State.
The verdict, based upon an indictment in a single count, could not possibly be misconstrued. There is no error in the form of it. Baldwin v. State, 204 Ala. 91, 85 So. 304; McGee v. State, 20 Ala. App. 221, 101 So. 321; Owens v. State, 104 Ala. 18, 16 So. 575; Jurzak v. State, 19 Ala. App. 290, 97 So. 178; Anderson v. State, 65 Ala. 553. It is not necessary that the judgment in a criminal case specify distinctly the offense of which defendant has been convicted, where such offense is clearly shown elsewhere in the record. Couric v. City of Eufaula, 24 Ala. App. 564, 138 So. 557; Cornelison v. State, 18 Ala. App. 639, 94 So. 202; Hardeman v. State, 202 Ala. 694, 81 So. 656; Casey v. State, 19 Ala. App. 317, 97 So. 165; Battle v. State, 21 Ala. App. 584, 110 So. 323.
The indictment charged, correctly, "assault with intent to murder," in a single count. The jury's verdict found appellant (defendant) "guilty as charged." Judgment and sentence followed, accordingly. We think neither the verdict nor judgment rightfully subject to misconstruction. They are as definite as the law seems to require. See Baldwin v. State, 204 Ala. 91, 85 So. 304. Certainly the sentence cannot be misunderstood.
Appellant was an officer of the law — policeman of the town of Clio. By his own admission he had "taken a drink" (of whisky, it is apparent). While under the influence of this "drink" — whatever the degree of the "influence" — he went, in the deep nighttime, in pursuit of a car driven by one Parish — a man whom he did not know, and against whom no charges were pending nor preferred. During this pursuit he, by his same own admission, fired three shots from a deadly weapon at the car in which the said Parish was riding — true, he says, at the "tires" of said car — though the fact remains that one or more bullets from his pistol struck the car at a point above the tires.
While we might, and do, entertain serious doubt that appellant was sufficiently shown by the evidence to have actually intended to murder the party driving the pursued car, yet whatever revisory powers we possess in that regard are not called into play by the record before us. We are clear to the conclusion that the evidence made a case for the jury, at least in the first instance, even under the holding of the majority of our Supreme Court in the case of Ex parte Grimmett, 228 Ala. 1, 152 So. 263.
The few exceptions reserved on the taking of testimony have each been examined, as well as the written charges refused to defendant (appellant). But we see no need to discuss same. It is manifest that no error prejudicial to appellant's rights was committed in any ruling invoked and made.
The judgment of the lower court is affirmed.
Affirmed.