124 Ala. 32 | Ala. | 1899
— The act of February 15, 1899, amendatory of the act establishing the Tuskaloosa Law and Equity Court (now known as the Tuskaloosa County Court), among other provisions contains this: “No defendant shall be put upon trial for any offense which may be punished capitally, within five months from the time of the commission of the alleged offense, unless the defendant consent thereto” (?) “in writing for a trial within a shorter time.” The defendant in this case by a writing signed by himself and also by his counsel before he Avas put on trial did consent to his trial being entered upon and had on the day upon which it was entered upon and had, and it is of no consequence that the defendant had been arraigned and this day set for his trial before this consent Avas entered into and filed in the cause.
If it be true, as noAv contended for appellant, that such written consent can only be made to appear before this court in a bill of exceptions, and that it cannot be looked to here as the case is noAV presented on the record proper of the trial court though the consent is copied therein, these considerations would not avail the appellant. In the first place he Avould not be allowed to bring the case here on the record alone, and insist upon a reversal on matter which or the absence of which could only be shoAvn by bill of exceptions; and, in the next, however the cause comes here in this respect and whether this waiver is matter of record or for a bill of exceptions, Ave would presume in support of the judgment beloAv that the consent required by the statute was entered into unless the contrary affirmatively appeared.
The counsel who represented the defendant in the court below, and who with him signed the written con
The sheriff of Tuskaloosa county is the executive officer of the county court of that county. An order made by the court that copy of venire and of indictment be served on the defendant etc. etc. is an order addressed to the sheriff. It was so understood in this case, as it Avill be in all; and the order was duly executed by the sheriff.
It has never been the practice in this State for the judgment entry or other part of the record to show the names of the jurors trying a case: the universal formula has been, “Came also a jury of good and lawful men, toAvit, A. B. and eleven others” etc. etc. There is no law requiring the names of the trial jurors to appear of
The verdict of the jury was this: “We. the jury find the defendant guilty of murder in the first deree, and fix the penalty — imprisonment for life.” This is a sufficiently formal and regular verdict. It assesses the punishment at imprisonment for life. It was unnecessary for the place of imprisonment to be stated in the verdict: The law fixes that. — Gunter v. State, 83 Ala. 96.
It is further insisted that the record does not show that defendant’s counsel was present when sentence Avas passed, and that for this the judgment must be reversed. Pretermitting all other considerations, our conclusion in this connection will be rested upon the fact that the record does sufficiently shoAV the presence of defendant’s counsel at the time of sentence. The trial, verdict, judgment and sentence were severally had, returned, rendered and imposed on the same day, August ,11th, 1899. The entry of judgment and sentence is in the usual form. In the outset of the entry it is recited: “Came O. B. Verner, acting solicitor, aaTlo prosecutes for the State, and also came the defendant, Wess Sudduth, in his own proper person and by his attorney, F. M. Purifoy,” etc. etc. setting out the arraignment and plea, the service of copies of venire and indictment, the coming and verdict of the jury, and continuing: “It is therefore .considered by the court, and if is the order and judgment of the court that said defendant, Wess Sudduth, is guilty of murder in the first degree as charged in the indictment,” and concluding as follows: “Now upon this the 11th day of August, 1899, said defendant being in open court and being asked by the court if he had anything to say why the sentence of the law should not be pronounced upon him says nothing. It is therefore considered’’ etc. etc. We construe the second reference in the entry to the date of August 11th, 1899, not as marking a break in the continuity of the proceedings between judgment and sentence but, quite to the contrary, as making it the more certain that there was no interim or break, and
We may remark further that it would seem to be sufficient for the record to show by fair inference affirmatively that the prisoner and his counsel were present; and that even where the record fails to sIioav their presence at time of sentence only, the judment will not be reversed but the sentence Avill be set aside and the prisoner remanded for sentence aneiv. — Young v. State, 39 Ala. 357.
In all that Ave have said Ave have merely assumed without intending to intimate any opinion thereon that the record should sIioav the presence of his counsel when the defendant is sentenced.
Let the judgment of the county court be affirmed.