![]() ![]() The trial court did not err to a reversal in refusing to grant a continuance in order that counsel for defendant might institute mandamus proceedings against the jury commissioners. *636 Reversible error was not committed by the trial court in declining to grant a continuance at the request of the defendant or to put the State upon unsworn showings of two persons summoned as witnesses by defendant, but who were shown to be without the State by the return of the sheriff. These persons had not been excused from appearing and, whether summoned or not, their failure to appear was no ground for a continuance or for quashing the venire. Two persons listed on the venire failed to appear, although duly summoned. There was no showing of fraud on the part of the jury commission in filling the jury box or in drawing or summoning the jurors. The trial court did not err in refusing to quash the venire of jurors drawn and summoned for the trial of the defendant. Reversible error does not appear in this action of the trial court. The defendant thereupon filed his plea in abatement which the trial court struck on motion of the State. We will first consider the rulings made by the trial court on the defendant's preliminary motions.īefore entering upon the trial, the defendant sought the permission of the court to withdraw his plea of "not guilty" previously interposed in order that he might file a plea in abatement. The State has filed a brief which treats with a few of the questions presented for review. It has been said that the statute quoted above, when construed in pari materia with others, makes the right of appeal in criminal cases one of substance, imposing on the court a duty to search the record for errors and if the question reserved is of substance which might have affected the result, it is of no importance that the appellant or his counsel has not argued the question in a brief. But the judgment of conviction must not be reversed because of error in the record, when the court is satisfied that no injury resulted therefrom to the defendant." "In cases taken to the supreme court or court of appeals under the provisions of this chapter, no assignment of errors or joinder in errors is necessary but the court must consider all questions apparent on the record or reserved by bill of exceptions, and must render such judgment as the law demands. Section 389, Title 15, Code 1940, provides: However, the filing of a brief is not essential to our consideration of an appeal by a defendant in a criminal case. The appellant was represented by counsel of his choice at arraignment and on the trial below, but he is not represented in this court by counsel and hence no brief has been filed in his behalf. His motion for a new trial having been overruled and denied, Joe Ed Payne has appealed to this court. The jury returned a verdict of murder in the second degree and fixed punishment at imprisonment in the penitentiary for a term of twenty-five years. On motion of Joe Ed Payne, a severance was ordered and he was tried separately. Joe Ed Payne was jointly indicted with his son Charles for the first degree murder of Kennamer. Howard Kennamer was shot to death on December 10, 1952, in the store of Archie Russell in the Elon community, Madison County, Alabama.
0 Comments
Leave a Reply. |
AuthorWrite something about yourself. No need to be fancy, just an overview. ArchivesCategories |