1 So. 2d 665 | Ala. | 1941
Lead Opinion
Writ denied.
GARDNER, C. J., and BROWN and FOSTER, JJ., concur.
Addendum
The action challenged by the certiorari to the Court of Appeals is the sufficiency of the judgment from which appeal was taken.
The judgment entry recites the appearance in court of the defendant in his own proper person and by attorney, and being "duly and legally arraigned in open court upon said charge for his plea thereto pleads and says that he is not guilty in manner and form as charged in the affidavit." The issue being joined upon the defendant's plea of not guilty, a jury found the defendant "guilty" and his fine was assessed at $200. It was thereupon considered and adjudged by the court that the defendant "is guilty of violating Prohibition Law as charged in affidavit, and that the State of Alabama for the use of Franklin County have and recover of the Defendant a fine in the sum of $200.00, together with all costs incurred in this prosecution."
The judgment shows compliance with Driggers v. State,
The judgment does not show that the defendant was called upon to state why judgment should not be pronounced against him.
In the respect now considered between the requirements of a sentence for a felony and that for a misdemeanor, the rules that apply come to us from the common law and have been maintained by the decisions of this court. The early cases for felonies are considered in Aaron v. State,
In Perry v. State,
This is followed by Judge Stone in Spigner v. State,
See also Reynolds v. State,
The distinction between felonies and misdemeanors has been considered by the federal courts. In Turner v. United States, 5 Cir.,
In Schwab v. Berggren,
"At common law it was deemed essential in capital cases that inquiry be made of the defendant before judgment was passed whether he had anything to say why sentence of death should not be pronounced upon him; thus giving him an opportunity to allege any ground of arrest, or to plead a pardon if he had obtained one, or to urge any legal objection to further proceedings against him. And if the record did not show that such privilege was accorded to him the judgment would be reversed.
"This rule, however, does not apply to an appellate court, which, upon review of the proceedings in the trial court, merely affirms a final judgment, without rendering a new one. Due process of law does not require his presence in the latter court at the time the judgment sentencing him to death is affirmed."
And Justice Harlan, delivering the opinion of the court said: "At common law, it was deemed essential in capital cases that inquiry be made of the defendant, before judgment was passed, whether he had anything to say why the sentence of death should not be pronounced upon him; thus giving him an opportunity to allege any ground of arrest, or to plead a pardon, if he had obtained one, or to urge any other legal objection to further proceedings against him. This privilege was deemed of such substantial value to the accused that the judgment would be reversed if the record did not show that it was accorded to him. Ball v. United States,
The distinction between the requirements of judgment in felony and misdemeanor cases is made the subject of extended notes in 113 A.L.R. pp. 834 through 840. Of the decisions in misdemeanor cases, it is noted:
"The law is well settled that in misdemeanor cases there is no need, in the absence of statute, of asking a defendant before sentence whether he has any legal cause to show why judgment should not be pronounced against him. United States. — Turner v. United States (1895) C.C.A. 5th, 66 F. 287, (two cases; timber cutting on government lands). Alabama. — Cranford v. State (1917)
"Thus, in Cranford v. State (1917)
Further, under the heading "Sufficiency of showing of inquiry; record," it is said: *145
"Many of the cases which hold that it is reversible error not to propound the question to the accused assert that it is essential in all capital felonies that it should appear of record that the defendant was asked before sentence if he had anything to say why it should not be pronounced. Ball v. United States (1891)
And under the presumptions that obtain to the end that judgments will be sustained if permissible by the record, it is noted in 113 A.L.R. pp. 837, 838 and 840, that:
"Some courts, however, will not reverse a judgment against a defendant because the record does not affirmatively show that he was asked to state why judgment should not be pronounced against him, unless the record actually shows that it was not, the presumption being either that the inquiry was actually made, or at least that defendant was accorded every opportunity to interpose objections prior to the entry of the judgment. Alabama. — Aaron and Ely v. State (1866)
"And a statement in the record of a perjury prosecution, showing that the defendant was asked 'if he had anything to say why the judgment of the court should not now be pronounced upon him,' was held to show with sufficient certainty that the defendant was properly interrogated before the sentence was pronounced by the presiding judge, in Boynton v. State (1884)
In the instant case the plea was "not guilty" to the charge of misdemeanor, and issue being joined the defendant was convicted by the jury. The failure of the court to ask the defendant why the judgment of the court under the law should not be pronounced against him was not required to be propounded before his sentence was pronounced upon him in accordance with the verdict of the jury.
The application for rehearing is overruled.
Writ denied. Rehearing overruled.
GARDNER, C. J., and BROWN and FOSTER, JJ., concur.
