Blakely v. State

• Decision Date: 07 June 1939
• Docket Number: 4 Div. 493.
• Citation: 190 So. 102,28 Ala.App. 574
• Parties: BLAKELY v. STATE.
• Court: Alabama Court of Appeals

190 So. 102

28 Ala.App. 574

BLAKELY v. STATE.

4 Div. 493.

Court of Appeals of Alabama

June 7, 1939

Rehearing stricken June 20, 1939.

Appeal from Circuit Court, Russell County; J. S. Williams, Judge.

Homer Blakely was convicted of robbery, and he appeals.

Reversed and remanded.

A. L. Patterson and W. R. Belcher, both of Phenix City, for appellant.

Thos S. Lawson, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.

BRICKEN Presiding Judge.

Appellant was indicted for the offense of robbery. The indictment charged that he feloniously took $17 lawful money of the United States of America, the personal property of Dock Hutto, from his person, and against his will, by violence to his person, or by putting him in such fear as unwillingly to part with the same.

The trial in the lower court resulted in the conviction of the defendant and the jury by its verdict fixed his punishment for fifteen years, and thereupon what purports to be a judgment of the court below was entered upon the Minutes of the court, and from which this appeal was taken.

Appellant in his brief, assigns as error, the rulings of the court below refusing to permit him to introduce certain testimony and also in refusing to give written charge number 5. He also contends that the final judgment of said court is erroneous and wholly insufficient to justify his imprisonment in the penitentiary of this State.

The offense charged in the indictment being a capital offense, the judgment entry in this case recites that the defendant was arraigned in the court below on November 15, 1938, and that he thereupon interposed his plea of not guilty; that Monday, November 21, 1938, was fixed by the court as the day for the trial of the defendant; that the venire of jurors for the trial shall be 81 in number and consisting of the 50 jurors drawn to serve the court for the week, beginning November 21, 1938, and 31 jurors whose names were drawn specially from the jury box in the presence of the defendant; that the Sheriff serve notice on all the jurors composing the venire to appear for the purpose of said trial at the time named, and that the Sheriff also serve forthwith upon the defendant a list of the names of all the persons composing the venire of jurors, as well as a copy of the indictment against the defendant. In other words, the judgment entry recites that the court below complied with the provisions of sections 5568 and 8644 of the Code 1923, which provisions are mandatory. Barnett v. State, 28 Ala.App. 293, 184 So. 702; Crump v. State, 28 Ala.App. 103, 179 So. 392.

No question with reference to the venire of jurors drawn and summoned for the trial of the defendant's case in the court below appears to have been raised in that court, nor does it appear that the defendant made any complaint in the lower court that he was not served with a copy of the venire of jurors together with a copy of the indictment upon which he was to be tried.

The judgment entry, as we have noted, sets out the arraignment of the defendant on November 15, 1938. Said judgment entry then proceeds and concludes as follows:

"November 24, 1938. This cause coming on to be heard, comes the State by its Solicitor and comes also the defendant in his own proper person and attended by his Counsel. The defendant upon being properly arraigned upon the indictment in this cause for answer pleads not guilty. Issue being joined, thereupon comes a jury of 12 good and lawful men, to-wit: Walter G. Robertson and 11 others, who having heard all the evidence offered upon the trial of this case, both for the State and the defendant, argument by counsel and the charge of the Court, do, on their oaths say,

" 'We, the jury, find the defendant guilty of robbery and fix his sentence at fifteen years.

" '(Signed) W. G. Robertson, Foreman.'

"The defendant is adjudged guilty and stating in open Court in response to an inquiry propounded by the Presiding Judge that he had nothing to say why the sentence of the Court should not be pronounced upon him is sentenced to imprisonment in the penitentiary for a period of fifteen years.

"The defendant gives notice of an appeal, but does not pray a suspension of the sentence pending the appeal, electing to begin the execution of the sentence.

"(Signed) J. S. Williams, Judge."

In the case of Bill Carroll v. State, Ala. App., 189 So. 219, this court passed upon the legality and sufficiency of the final judgment of the circuit court of Russell County there before us. The offense charged in the Carroll case was robbery, and the judgment there involved is practically identical with the judgment in the case at bar, except as to the length of the punishment fixed by the jury. In the Carroll case it was said: "The judgment entry merely shows the verdict of the jury and the court Clerk's conclusion that the defendant was adjudged guilty by the trial court and the Clerk's conclusion, also, that the defendant was sentenced to imprisonment in the State penitentiary for a period of ten years. This judgment entry was wholly insufficient. It shows neither a solemn adjudication of the guilt of the defendant, nor the formal and necessary imposition of the sentence of the law as punishment for the offense."

It is apparent, from what was said in the Carroll case, that the judgment set out in the record in the case at bar is not the formal and necessary adjudication of the guilt of the defendant by the trial court, and while it is probably sufficient to support this appeal, Hardaman v. State, 17 Ala.App. 49, 81 So. 449; Oliver v. State, 25 Ala.App. 34, 140 So. 180, it is illegal and erroneous and wholly insufficient to warrant or sustain the imprisonment of appellant in the penitentiary of this State.

In the case of Oliver v. State, supra, the sufficiency of the judgment there involved was before this court for consideration, and it was there said:

"The appellate courts of this state have been extremely liberal in upholding informal judgments of nisi prius 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 be intended as an adjudication, such entry will support an appeal. Hardaman v. State, 17 Ala.App. 49, 81 So. 449.

"There are still, however, certain formalities required in final judgments in criminal cases which are still required to be complied with and when omitted calls for either a reversal 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 the error is in the sentence alone, the judgment of conviction may be affirmed and the cause remanded for proper sentence. Hardaman's case, supra; Cockrum v. State, 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 a valid judgment is that there must be a solemn adjudication of guilt. In this connection we call especial attention to the 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."

The case of Presley v. State, 22 Ala.App. 167, 113 So. 485, 486, where this court also considered the sufficiency of the judgment of conviction, it was said: "In the case of Wells v. State, on rehearing, 19 Ala.App. 403, 97 So. 681, many of the decisions of this court and of the Supreme Court bearing on these questions were collated and discussed. There it was pointed out that the recitals of the clerk as to what took place were not adjudications by the court."

The case of Wright v. State, 103 Ala. 95, 15 So. 506, is one where our Supreme Court considered the sufficiency of the recitals of a criminal judgment, and it was there said: "It requires neither argument nor citation of authorities to show that this statement is wholly inoperative as a judgment. It seems to be no more than a mere repetition of the entries by the court upon a trial docket,--data for the judgment."

When this case was submitted in this court a duly certified copy of the bench notes, entered by the trial judge upon the trial docket in this case in the court below, sent here in response to certiorari from this court, was filed as a part of the transcript in this case. A comparison of the judgment of conviction, set out in the transcript, with these...