Certiorari
to Court of Appeals.
THOMAS
Justice.
The
action challenged by the certiorari to the Court of Appeals
is the sufficiency of the judgment from which appeal was
taken.
The
judgment entry recites the appearance in court of the
defendant in his own proper person and by attorney, and being
"duly and legally arraigned in open court upon said
charge for his plea thereto pleads and says that he is not
guilty in manner and form as charged in the affidavit."
The issue being joined upon the defendant's plea of not
guilty, a jury found the defendant "guilty" and his
fine was assessed at $200. It was thereupon considered and
adjudged by the court that the defendant "is guilty of
violating Prohibition Law as charged in affidavit, and that
the State of Alabama for the use of Franklin County have and
recover of the Defendant a fine in the sum of $200.00
together with all costs incurred in this prosecution."
The
judgment shows compliance with Driggers v. State,
123 Ala. 46, 26 So. 512, 513, in that "enough is
expressed to show that the judgment of the court was invoked
and pronounced upon the guilt of the defendant."
The
judgment does not show that the defendant was called upon to
state why judgment should not be pronounced against him.
In the
respect now considered between the requirements of a sentence
for a felony and that for a misdemeanor, the rules that apply
come to us from the common law and have been maintained by
the decisions of this court. The early cases for felonies are
considered in Aaron v. State, 39 Ala. 684 and
Burch v. State, 55 Ala. 136.
In
Perry v. State, 43 Ala. 21, 22, the rule of the
common law as to felonies is thus
stated: "Blackstone lays it down as a rule of procedure
in capital felonies, that, when 'the jury have brought in
their verdict in presence of the prisoner, he is either
immediately, or at a convenient time soon after, asked by the
court, if he has any thing to offer why judgment should not
be awarded against him.'-4 Blackstone's Com. 375,
marj.; 1 Chitt.Cr.Law, 699, 701. And in Bishop's Criminal
Procedure, it is said, 'It is now indispensably
necessary, even in clergyable felonies, that the defendant
should be asked by the clerk, if he has anything to say why
judgment "should" not be pronounced on him; and it
is now material that this appear upon the record to have been
done.' 'If he has nothing to urge in bar, he
frequently addresses the court in mitigation of his conduct,
and desires the intercession of the judges with king' (or
the executive), or casts himself upon their mercy. After
this, nothing more is done, but the proper judge pronounces
the sentence.-2 Bish.Criminal Proc. p. 610, §§ 865, 866; * *
*."
This is
followed by Judge Stone in Spigner v. State, 58 Ala. 421,
424, when the trial was for burglary, to the effect:
"There was a rule of the common law, that before
sentence, on a conviction of felony, the prisoner must be
interrogated by the court, whether he has any thing to say
why the sentence of the law should not be pronounced upon
him. 1 Bish.Cr.Proc. § 1118. And this court, in Crim. v.
State, 43 Ala. 53, announced that doctrine. We have no
desire to re-examine the question at this time. The main
purpose of the inquiry and the rule is, that the prisoner,
before sentence, may have afforded to him the opportunity to
make any motion which will prevent judgment. The record
informs us that after the coming in of the verdict, the
defendant made two motions: one in arrest of judgment, and
the other for a new trial, which were severally overruled by
the court. These are the motions most usually made after
verdict, and we think the recital that these motions were
made, proves that the usual question must have been in
substance propounded, and that, in fact, the prisoner had
accorded to him substantially, all the rule was intended to
secure. It would look like child's play to remand this
cause, when the only effect could be to propound the question
to the prisoner, receive his answer that he had nothing
further to offer, and then pronounce the sentence of the law
on the verdict of guilty heretofore rendered by the jury, and
which is free from error. Burch v. State, 55 Ala.
136."
See
also Reynolds v. State, 68 Ala. 502; Crim. v.
State, 43 Ala. 53; Mullen v. State, 45 Ala. 43, 6 Am.Rep. 691; Boynton v. State, 77
Ala. 29; Burch v. State, 55 Ala. 136; Bryant v.
State, 13 Ala.App. 206, 68 So. 704; Id., 14 Ala.App. 28,
70 So. 961.
The
distinction between felonies and misdemeanors has been
considered by the federal courts. In Turner v. United
States, 5 Cir., 66 F. 289, 290, a timber case, Judge
Pardee said: "The seventh assignment of error is that
the court erred in not asking the defendant Turner if he had
anything to say why the sentence of the court should not be
pronounced against him when said sentence was pronounced.
Whatever may be the rule in capital cases and other felonies,
we are clear that no such question is necessary in
misdemeanors. See Bish. Cr.Proc. § 1118, note; 1
Archb.Cr.Law. & Prac. (Pomeroy's Notes) p. 580. The
judgment of the district court is affirmed."
In
Schwab v. Berggren, 143 U.S. 442, 446, 12 S.Ct. 525,
36 L.Ed. 218, it is said:
"At
common law it was deemed essential in capital cases that
inquiry be made of the defendant before judgment was passed
whether he had anything to say why sentence of death should
not be pronounced upon him; thus giving him an opportunity to
allege any ground of arrest, or to plead a pardon if he had
obtained one, or to urge any legal objection to further
proceedings against him. And if the record did not show that
such privilege was accorded to him the judgment would be
reversed.
"This
rule, however, does not apply to an appellate court, which,
upon review of the proceedings in the trial court, merely
affirms a final judgment, without rendering a new one. Due
process of law does not require his presence in the latter
court at the time the judgment sentencing him to death is
affirmed."
And
Justice Harlan, delivering the opinion of the court said:
"At common law, it was deemed essential in capital cases
that inquiry be made of the defendant, before judgment was
passed, whether he had anything to say why the sentence of
death should not be pronounced upon him; thus giving him an
opportunity to allege any ground of arrest, or to plead a
pardon, if he had obtained one, or to urge any other legal
objection to further proceedings against him. This privilege
was deemed
of such substantial value to the accused that the judgment
would be reversed if the record did not show that it was
accorded to him. Ball v. United States, 140 U.S.
118, 129, 11 S.Ct. 761 ; 1 Chit.Crim.Law, 699,
700; Rex v. Geary, 2 Salk. 630; King v. Speke, 3 Salk. 358;
Anon., 3 Mod. 265; 1 Archb.Crim.Prac. & Pl. (Pom.Ed.)
577, 578. * * *"
The
distinction between the requirements of judgment in felony
and misdemeanor cases is made the subject of extended notes
in 113 A.L.R. pp. 834 through 840. Of the decisions in
misdemeanor cases, it is noted:
"The
law is well settled that in misdemanor cases there is no
need, in the absence of statute, of asking a defendant before
sentence whether he has any legal...
