205 So. 2d 250 | Ala. Ct. App. | 1967
Cowart was convicted of grand larceny for taking a 1962 Pontiac automobile, the property of Kenneth Shover. The court below sentenced him to ten years in the penitentiary.
This ruling by the court was erroneous. The written testimony before the committing magistrate is the best evidence. Kennedy v. State,
Fox testified that though Cowart had not been arrested, nevertheless he had accused Cowart of the theft and considered the latter as a suspect. Investigator Posey testified that Cowart was not under arrest, "just being detained." (R. 48.)
No evidence was adduced as to the precise place of this questioning other than a reference to "the Midfield auction * * * a place where 'they' trade and sell cars." Cowart told Fox that he owned the car and had a bill of sale for it. Under the tendencies of the State's case, this was palpably false.
It is abundantly clear that, unlike the setting in Ison v. State,
Under Baker v. State,
Defense counsel interposed only a general objection. Under Whitehead v. State,
Therefore, in this context, we do not consider the rule discussed in Mason v. State,
Cowart, pro se, has filed a brief claiming error in being arraigned on the same day of his being put to a jury.
Grand larceny is no longer a capital offense. There is no statute specifying any time between arraignment and trial except Code 1940, T. 30, § 69, which expressly confines itself to capital cases.
The setting of noncapital cases is regulated by T. 15, §§ 316 and 317, which read:
"§ 316. It is the duty of the clerk of the circuit court to set for trial all criminal cases in his court, except capital cases, and cases of parties in custody, for particular days; and no case so set shall be called for trial before such day.
"§ 317. No person shall be tried on an indictment presented by the grand jury until *203 at least one entire day after the case has been placed upon the trial docket of the court, except with the consent of the defendant; but this section shall not apply to cases where an indictment has been quashed or demurrer sustained thereto and a new indictment for identical offense is returned on the same day."
In this record the clerk filed the indictment on February 18, 1966, and arraignment came on March 2. No entry shows when the case was put on the trial docket of the circuit court.
No motion for continuance was interposed. There is no error in this aspect, particularly without a ruling by the circuit court. See Haun v. State,
This undated entry fails to show that at the time of allocutus and sentencing Cowart was attended by counsel. This is a point which our Supreme Court has advised that careful practice adjures that such assistance or proper waiver thereof should affirmatively appear. Sentencing is a critical time; e. g., it is then that the need arises to give timely notice of appeal so as to have sentence suspended under Code 1940, T. 15, § 368(a). Ex parte Downer,
If Cowart was not so represented and had not intelligently and knowingly waived his right to counsel at the time of imposition of sentence, then we might conceivably have been compelled to remand for proper sentence. Berry v. New York,
State v. Strickland,
For the errors under I and II above, the judgment below is reversed and the cause remanded for further proceedings in accordance herewith.
Reversed and remanded.
JOHNSON, J., concurs in result. *204