116 So. 907 | Ala. Ct. App. | 1928
Lead Opinion
Petitioner was convicted in the circuit court of Pike county on a charge of felony and was given an indeterminate sentence of from 3 to 4 years in the State Penitentiary. At the time of sentence "notice of appeal was given," but the court refused to suspend the judgment pending the appeal because no exceptions were reserved. This petition is brought to compel Hon. W. L. Parks, judge of the circuit, who imposed the sentence, to suspend the judgment pending the appeal.
It nowhere appears, either in the petition or exhibits thereto, that questions of law were reserved on the trial of the case, nor is it alleged that any such questions will appear in this record when it is completed and presented to this court.
We do not in this opinion discuss the rights of a defendant under a writ of error, as is provided for under section 3252 et seq. of the Code of 1923. This right, as it relates to appeals in criminal cases, is discussed at length in Ex parte Knight,
The foregoing statutes appear first in the Code of 1852, and have been several times amended and brought forward into subsequent Codes, as is pointed out and discussed in Rivers v. State,
In the leading case on the question under consideration here, it is pointed out that the power of the trial court to suspend, and the right of the prisoner to demand a suspension, depends on the fact which must appear of record, when the order of suspension is made — that the defendant has reserved a question of law for consideration by the appellate court. The opinion adds:
"Unless this fact clearly appears, the court cannot grant the suspension." Ex parte Knight,
The above-cited case has been several times cited and reaffirmed, and the conclusions there reached have never been questioned. The statutes, as amended, and as they now stand, allow suspension of judgment and bail pending appeal only:
"When any question of law is reserved in case of a felony, and it shall be made known," etc. Code 1923, § 3241.
This is a sine qua non to the power of the trial court to suspend judgment and allow bail.
The respondent's demurrer is sustained, and the writ is denied.
Addendum
Writ granted on authority of Ex parte Mancil,