Driggers v. State , 123 Ala. 46 ( 1898 )

TYSON, J.

The judgment entry in all criminal cases where there is conviction should recite in express words that the defendant is adjudged guilty by the court a.s found by the jury. There should always be the judgment of the court upon his guilt. In many cases, tlie judgment entries in this respect are faulty and more attention should be paid by the clerks and judges of nisi ¡iritps courts to this important feature. The essential requisites which such judgment entries should contain have been so -often pointed out and .suggested by this court it would seem that every clerk and judge in the State would know what they are. .And it would seem that a compliance with these suggestions is a matter $o simple, that all errors in this respect could easily be avoided. Besides it is a matter of too much importance and a duty too clearly imposed by law that the mistake should so frequently occur. It can be accounted for upon no other theory than that the clerk who writes the minute entry is either incompetent or very careless in the discharge of his duties, and the presiding judge fails to read or have the minutes read as he is required by the statute to do.

In the case before us, the language employed in the minute entry is barely sufficient to uphold the conviction, but under the liberal construction given to 'words of similar import in the case of Wilkinson v. The State, 106 Ala. 28, we hold that enough is expressed to show that the judgment of the court was invoked and pronounced upon the guilt of the defendant.

What is ordinary observation in cases involving the carrying of a pistol concealed about the person cannot be very well defined to meet all the varying conditions under which a pistol may be carried, but it may be said generally that the meaning is, the pistol must be open to the ordinary observation of persons who may come in contact with the person carrying it in the usual and ordinary associations of life. If a person with a pistol on his person approach another or pass him on the street or public highway, or is otherwise thrown with the other in ordinary social contact, lias'the pistol on his person so that it may be seen without inspection or examination of his person for that purpose and from ordinary observation as persons usually observe each other, then the pistol is not concealed within the meaning of the statute. On the other hand, if the pistol is carried on the person under such conditions that it is hidden from view from the observation of persons coming in contact with the person carrying it, casually observing his person, this is a concealment and in violation of the statute.—Ramsey v. State, 91 Ala. 29; Smith v. State, 96 Ala. 68.

Charges 1, 2, and 3 requested by the, defendant tested by these principles in view of the, evidence in the case were not only abstract, as having no tendency of the evidence to support one fact assumed in each of .them, but were misleading.

It may or may not have been true that the pistol carried by the defendant could have been seen by a person standing behind him by an inspection of his person for that purpose or from ordinary observation. But whether either of these propositions were true, the evidence failed to inform the jury; and the charges, if given, would have required the jury to speculate as to the truth or falsity of this fact hypothesized in each of them. Besides, if the pistol was in the defendant’s “right side pants pocket in front,” it was of course concealed by his body from the view of any one standing behind him, whether he made a close inspection of his person or casually observed him.

There was no error in refusing each of the charges requested.

Judgment affirmed.