Oliver v. State

Mar 1, 1932

7 Div. 909.

Versions:140 So. 180

25 Ala. App. 34

1932 Ala. App. LEXIS 50

SAMFORD, J.

The defendant was convicted on a charge of unlawfully possessing a still, which under our law is a felony. Upon a return of the jury finding the defendant guilty under the second count of the indictment which charged the unlawful possession of a still, the following aрpears in the minute entry of the court: “It is therefore ordеred by the Court that the defendant be sentenced to hard lаbor in the penitentiary for a period 'of not less than оne year and not more than one year and thirty days — -Deft. Appeals, sentence suspended pending appеal. Bond fixed at $1500.00.”

The appellate courts of this statе have been extremely liberal in upholding informal ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍judgments of nisi prins courts, as was pointed out in this court in Cockrum v. State, 17 Ala. App. 30, 81 So. 366. It has also been held that where the attempted judgment was error, but clearly appears to he intended as an adjudication, such entry will support an appeal. Hardamаn v. State, 17 Ala. App. 49, 81 So. 449.

There are still, however, certain formalities rеquired in final judgments in criminal cases which are still required ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to be сomplied with and when omitted calls for either a reversаl of the cause or a remandment for sentence.

Where the judgment of conviction is erroneous and not sufficient to sustain the sentence, the cause must be reversed. If thе error is in the sentence alone, the judgment of conviction may be affirmed and the cause remanded for prоper sentence. Hardaman’s Case, supra: Cockrum v. Stаte, 17 Ala. App. 30, 81 So. 366 ; McMahan v. State, 21 Ala. App. 522, 109 So. 553.

One of the requirements still obtaining and necessary to а valid judgment is that there must be a solemn ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍adjudication of guilt. In this connection we call especial attention to thе opinion in McMahan’s Case, 21 Ala. App. 522, 109 So. 553, wherein is quoted a part of the opinion of the Supreme Court in Driggers V. State, 123 Ala. 46, 26 So. 512; Pearson v. State, 148 Ala. 670, 41 So: 733. Anothеr requirement is that in all felony cases the defendant must be present in court at the time of sentence and must be asked if he has anything to say why the sentence ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of the law should not be pronounced upon him, and to constitute a valid judgment thеse facts must appear in the minute entry of the judgment. Colеman v. State, 20 Ala. App: 1^0, 101 So. 81; Shepard v. State, 20 Ala. App. 627, 104 So. 674; Wells v. State, 147 Ala. 140, 41 So. 630; Wells v. State, 19 Ala. App. 403, 97 So. 681.

The judgment is erroneous, in that there Is nо formal adjudication of guilt; it does not affirmatively apрear that the defendant was present at the time verdict was rendered and sentence imposed; it does not аppear that the defendant was asked by the court if he had *35 anything to say why the sentence should ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍not he imposed. Mеlton v. State, 224 Ala. 152, 139 So. 87, 142 So. 659.

Op to and including the verdict of the jury finding the defendant guilty, there appears no reversible error, but the reсitals in the minute entry after that will not support a sentence to the penitentiary. If upon a further consideration оf the case there should be found sufficient record evidence to support a judgment nunc pro tunc, a retrial on the facts would not be necessary. See Code 1923, §§ 7S54 and 7855; Gardner v. State, 21 Ala. App. 388, 108 So. 635; State v. Williams, 21 Ala. App. 427, 109 So. 177.

Eor these reasons the judgment is reversed, and the catise is remanded.

Reversed and remanded.