Chandler v. State

• Decision Date: 08 April 1915
• Docket Number: 305
• Citation: 12 Ala.App. 287,68 So. 536
• Parties: CHANDLER v. STATE.
• Court: Alabama Court of Appeals

68 So. 536

12 Ala.App. 287

CHANDLER v. STATE.

No. 305

Court of Appeals of Alabama

April 8, 1915

Appeal from Circuit Court, Lauderdale County; A.H. Alston, Judge.

Aubry Chandler was convicted of violating the prohibition laws, and he appeals. Reversed and remanded.

The following charges were refused to defendant:

(1) General affirmative charge.

(2) Affirmative charge as to an offer to sell.

(3) Affirmative charge as to selling.

(4) Affirmative charge as to aiding and abetting or acting as assisting friend.

(5) If you believe from the evidence that defendant's set was only to offer to act as the agent of Bailey in making a purchase of whisky, then you cannot convict defendant.

The bill of exceptions recites:

That after the oral statement of the court to the jury relative to a reasonable doubt and moral certainty being the same thing, counsel for defendant said: "We accept first that portion of the oral charge given in explanation of our charge 6 relative to reasonable doubt and moral certainty." Thereupon the court interrupted counsel, and stated as follows: "That's all right; we haven't time for all that, just go ahead and state the heads of your exceptions, and that that will be sufficient." Counsel replied: "If your honor please, in our opinion, in order to make clear record on appeal, it is necessary that we set out separately and severally our grounds of objection in the presence of the jury, together with that portion of the charge to which we offer exceptions." The court replied "I tried to make it clear to you that I will allow you such exceptions as you desire separately, severally, jointly collectively, or any other way you want them." Counsel for defendant then said: "That is exactly what we want and with that understanding we do not desire unnecessarily to consume the time of the court, but we want one thing understood, however." The court: "What is it you want to understand?" Counsel for Defendant: "We want to understand that your honor's statement to us that we shall have in the record separately such exceptions as we think necessary to maintain the rights of our client covers the entire oral charge of the court" The Court "No, sir; I said no such thing. I said that you might have such exceptions as you desire to the court's oral explanation of the written charges given for defendant." Counsel for Defendant: "Then we have misunderstood you, and we now and here in open court, and in the presence of the jury, and before its retirement, desire to offer the following exceptions to the general oral charge of the court to the jury as follows." Here court interrupted and said: "No, sir; sit down. You can't make any other statement. Gentlemen of the jury, take the papers from the sheriff, retire, and make up your verdict." Thereupon the jury retired, and after they retired the court said: "I never saw such rules of practice in my life as evidently have been followed in this court. The defendant then and there, in open court, duly excepted to the action of the court in refusing to allow defendant before the retirement of the jury to state to the court exceptions to the general charge of the court.

Mitchell & Hughston, of Florence, for appellant.

W.L. Martin, Atty. Gen., and J.P. Mudd, Asst. Atty. Gen., for the State.

BROWN, J.

The judgment entry in this record shows that during the proceedings and after the pronouncement of judgment on the verdict of the jury the defendant made known to the trial court that he desired to prosecute an appeal from the judgment of conviction pronounced against him, and the court thereupon entered an order suspending execution of the judgment pending the appeal. The record also shows that a bill of exceptions seasonably was presented to and signed by the trial judge, in which numerous questions of law were reserved for decision by this court. The record does not show that the defendant complied with rule 43, Supreme Court Practice (175 Ala. xxi, 61 South. viii), by filing with the clerk of the trial court a truly dated written statement to the effect that he appealed from the judgment of conviction against him. The case of regular call was submitted on the merits, without formal motion to dismiss the appeal.

It is now insisted by the Attorney General that the appeal should be dismissed ex mero motu for failure of the defendant to comply with the rule; his insistence being that a compliance with the rule is jurisdictional, and without it the court's jurisdiction to review the judgment does not attach.

This case is distinguishable from that of Upshaw v. State, 11 Ala.App. 269, 66 So. 822, in this: There was nothing in the judgment of the court nor in what was set out in the record as a bill of exceptions in that case showing that any question of law was reserved on the trial for review. In this case, in addition to the recital in the judgment entry, there is a bill of exceptions showing that questions of law arising from rulings of the trial court adverse to the defendant were reserved on the trial by exceptions duly taken. This, under the practice prevailing prior to the adoption of the rule, was all that was required to perfect appeals in criminal cases, and under our statutes conferred jurisdiction upon the appellate court to review the questions so raised. Bolling v. State, 78 Ala. 469; Ex parte Knight, 61 Ala. 482; Upshaw v. State, 11 Ala.App. 269, 66 So. 822; Campbell v. State, 182 Ala. 18, 62 So. 57.

It is as insisted in brief by the Attorney General, the duty of attorneys practicing in appellate courts to familiarize themselves with the statutory provisions and rules governing appeals, and substantially comply with appellate procedure as regulated thereby, and appeals are subject...