Turner has appealed from his conviction of an assault against S. W. Mooty (a deputy sheriff of Perry County).
On August 21, 1956, Mr. Mooty went to the Marion Poultry Company, Marion, Alabama, to serve a warrant on Turner for a traffic offense. He found Turner washing out some vats and asked him, "Big Boy, do you want to sign that bond this morning? I come down to serve the warrant. Do you want to sign that bond this morning?"
Mooty's testimony continued:
The testimony of Mr. McFarland was to the same effect.
Turner's version was:
Turner's counsel introduced in evidence the assault and battery warrant which Mooty swore out on August 22 in contradiction of the latter's testimony that the incident occurred on the day before. The trial judge properly denied a tender of the bond given on Turner's enlargement. It had no probative value on the issue of assault and battery.
During argument, objection was made to the statement of the county solicitor, "I submit no man has a right to resist lawful arrest." Even though Turner was not being tried for resisting lawful arrest, we can perceive no error to the prejudice of the defendant since an inference of his so doing was almost inescapable under the State's case. The assault and the resistance were Siamese twins and we doubt that Solomon would have severed them. The res gestae or inseparability principle upholds the reception of the State's testimony as proper evidence. Thus, in Parsons v. State, 251 Ala. 467, 38 So.2d 209, evidence of burglary and larceny was not error on an indictment of robbery to get the keys to burglarize and steal. See also, Mason v. State, 259 Ala. 438, 66 So.2d 557, 42 A.L.R.2d 847. We agree with the trial judge that the county solicitor's remark was within the permissible latitude afforded counsel in argument thus "the deceased did not have an opportunity to have a trial," was not prejudicial argument. Bryson v. State, 264 Ala. 111, 84 So.2d 785.
At two other points objection was made to the circuit solicitor's statements in argument, first:
As to the first episode, it seems much milder than that set forth in Vinet v. State, 38 Ala.App. 299, 83 So.2d 357; and the Bryson case, supra, and its authorities obviate any criticism of the second incident.
The following two charges were refused the defendant:
Without going into all aspects of Charge 2, it suffices to say its thought was better stated in the oral charge in outlining the elements of a verdict of not guilty. The oral charge (which fully covered the applicable principles of self defense) also disposed of any need of Charge 3.
We have reviewed the entire record, as is our duty, and find it free of error. However, the judgment entry shows that on failure of payment of the fine of $100 Turner was sentenced to "perform hard labor for the State of Alabama, for the use of Perry County," and in like verbiage, to perform an added four months hard labor imposed by the judge by virtue of Code 1940, T. 15, § 328.
In view of the recent enactments
This cause is due to be affirmed on the merits but is remanded for proper sentence.
Ex mero motu we have restored the cause to reconsider the grounds for remandment for proper sentencing.
We now consider that there was no error in the form of sentence to hard labor for "the State of Alabama for the use of Perry County." That expression merely reflected that the governing body of Perry County delivered its hard labor convicts to the State.
Act No. 61, approved June 21, 1957, (1) added to Code 1940, T. 15, § 325, the proviso, "provided, however, no misdemeanor
The delivery to the State having been done away with, the above form of sentence in its execution is to be construed in the light of the new Act. The expression, "the State of Alabama for the use of," having been harmless surplusage initially, is now functus officio insofar as it connoted that Perry County hard labor prisoners were to be delivered to the State.
Therefore, the judgment below is due in all things to be affirmed; opinion modified accordingly.
Application for rehearing overruled.