55 So. 434 | Ala. Ct. App. | 1911
The appellant was tried under an affidavit drawn under section 7423 of the Code
The record in this case is free from any irregularity, and the judgment shows that the defendant was convicted and confessed judgment, with sureties, for the fine and costs. The record fails to show that the defendant excepted to any of the rulings of the court, and the bill of exceptions, which states that it contains all of the evidence, fails to show that any exception was reserved on the trial in any way to any action or ruling of the trial court. In the case of Woodson v. State, 170 Ala. 54 South. 191, the Supreme Court uses the following language: “The record proper in this transcript is free from irregularity. The bill of exceptions fails to show that any exception Avas reserved, in any manner, to any action or ruling of the trial court on the trial. It purports to -set out substantially all of the evidence, and it is apparent from it that the evidence was insufficient to warrant a conviction of the offense charged in the indictment. The trial court had jurisdiction of the subject-matter and of the person. Having complete jurisdiction, and the judgment being grounded on a verdict accurately responding to the indictment, the adjudication of guilt, and the sentence therefor, cannot be void. In respect of cases in the category to which this case belongs, the jurisdiction this court has is appellate only.
The act creating the county court of Macon county, the court in which the conviction was had, was approved February 18, 1891 (Laws 1890-91, p. 1251); and section 7 of the act provides that “in all cases tried in said county court of Macon county, 'the defendant shall have the right of appeal to the Supreme Court only, in the same manner and by the same methods as is now provided by law for appeals in similar cases from the circuit court, and may reserve by bill of exceptions on the record, questions of law arising in any of the proceedings, and may obtain writs of error in like manner, and the same proceedings may be had in such appeals as are now provided in sections 4508 to 4523 inclusive of the Code of Alabama.” It is insisted on behalf of the state that the judgment in this case should be affirmed, under the principles announced in Woodson v. State, supra. When the act creating the Macon county court was approved, a trial without a jury was governed and provided for by article 5 of the Code of 1896. Under section 3321 of the Code of 1896, where a special finding was not asked, the conclusion of the court as to the facts was equivalent to the verdict of a jury, and was irrevisable.—Dodd v. State, 92 Ala. 61, 9 South. 467. As we understand the record, it is unnecessary for us to pass upon this question.
Section 3321 of the Code of 1896 was amended by an act of the Legislature which was approved on October 12, 1903, and this act, as amended, now forms section 5361 of the present Code, which is as follows: “5361. Reservation of exceptions; revision on appeal. — In the
Treating this section as applidable to this case, we can say without hesitation that the facts disclosed in the bill of exceptions justified the findings of the court below, and that the appellant was properly convicted. The bill of exceptions shows that the appellant, on January 23, 1909, executed and delivered a mortgage securing a note for $931.50, maturing on the 1st day of October, 1909, to the Macon County Bank, on certain property. The testimony further shows that the appellant, on December 23, 1909, while the mortgage to the Macon County Bank was unsatisfied, and without the knowledge or consent of the bank, executed and delivered to one W. P. Cox a mortgage to secure a note for $70, due January 1, 1910, and that this mortgage was made upon a portion of the personal property already mortgaged to the Macon County Bank, and this mortgage contains a statement that the said property was unincumbered, ■ and the testimony further shows that Cox was not informed by the appellant of the existence of the mortgage to the Macon County Bank when the second mortgage was executed and delivered.
As stated above, the testimony set out in the bill of exceptions, which states that it contains all of the evidence, justified the conviction of the defendant by the court below, and the judgment of the court below is affirmed. ,
Affirmed.