Cherry v. State
| Decision Date | 06 May 1926 |
| Docket Number | 5 Div. 933 |
| Citation | 214 Ala. 519,108 So. 536 |
| Parties | CHERRY v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Macon County; N.D. Denson, Judge.
Tom (alias J.T.) Cherry was convicted of murder in the first degree, and he appeals. Affirmed.
Joe Brown Duke, of Opelika, for appellant.
Harwell G. Davis, Atty. Gen., and Robt. G. Tate, Asst. Atty. Gen for the State.
Appellant was convicted of murder in the first degree, and the death penalty imposed. There is no bill of exceptions, and the appeal is upon the record.
It is not now necessary that the transcript on appeal disclose an order fixing a day for the trial of a defendant, nor the order of the court for a special venire, unless some question was raised thereon before the trial court. In the absence of such question, such proceedings are upon appeal presumed to have been regular and legal. Section 3249, Code 1923 (vol. 2 Code 1923); Supreme Court rule 27; White v. State, 209 Ala. 546, 96 So. 709; Whittle v. State, 205 Ala 638, 89 So. 48.
The authorities relied upon by counsel for appellant (among them Spicer v. State, 69 Ala. 159, and Kinnebrew v State, 132 Ala. 8, 31 So. 567) antedate the above-cited statute, as now framed. Hardley v. State, 202 Ala. 24, 79 So. 362.
No question as to any of these matters appears to have been raised before the trial court. Indeed, no question or objection as to any matter of procedure or otherwise appears to have been interposed by the defendant, and the presumption of regularity and legality controls.
The presence of the defendant in court when a day was fixed for his trial is a matter properly appearing in the order fixing such day for the trial. As this order is now correctly omitted from the transcript, the case of Sylvester v. State, 71 Ala. 17, holding that defendant's presence in court should, on appeal, be made to affirmatively appear, is without application.
The judgment of the court fixing the guilt of the defendant in accordance with the jury's verdict and pronouncing upon him the sentence of the law is sufficient. Sullivan v. State, 208 Ala. 473, 94 So. 473; Carmichael v. State, 213 Ala. 264, 104 So. 638. We find nothing in the case of Gray v. State, 55 Ala. 86, that at all militates against this conclusion. We find no basis for the suggestion of unconstitutionality of section 3249, Code, supra.
There being no error in the record, the judgment is affirmed.
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Scott v. State
...appeal. The judgment of the circuit court is sufficient to adjudge defendant's guilt. Carmichael v. State, 213 Ala. 264, 104 So. 638; Cherry v. State, supra; Wilkinson State, 106 Ala. 23, 17 So. 458; Roberson v. State, 123 Ala. 55, 26 So. 645; 69 A. L. R. 793, 794, note. Affirmed. ANDERSON,......
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Hines v. State
... ... are certain orders of the court required by law (section ... 8644, Code) to be made in capital cases, but on appeal they ... need not be shown unless some question is raised before the ... trial court. Section 3249, Code, and Supreme Court Rule 27, ... Vol. 4, Code 1923, p. 888; Cherry v. State, 214 Ala ... 519, 108 So. 536; Davis v. State, 229 Ala. 674, 159 ... But ... these provisions do not include the requirement that there ... was a trial on the issue of not guilty by a jury duly ... impaneled and sworn, on which they returned the verdict. It ... would be ... ...
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Jackson v. State, 6 Div. 662.
... ... the proceedings in respect to a special venire for the ... appellant's trial, and, in the absence of some question ... being raised on the trial, the statute creates a presumption ... that the proceedings in this respect are regular," ... citing Code 1923, § 3249, and Cherry v. State, 214 ... Ala. 519, 108 So. 536 ... What we ... have just next above quoted applies in this case, and ... disposes of, adversely to appellant's contention, his ... "assignment of error" No. 2 ... The ... other questions argued in appellant's brief, filed here, ... ...
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Shields v. State, 6 Div. 533.
... ... in respect to a special venire for the appellant's trial, ... and, in the absence of some question being raised on the ... trial, the statute creates a presumption that the proceedings ... in this respect are regular. Code 1923, § 3249; Cherry v ... State, 214 Ala. 519, 108 So. 536 ... In one ... of the grounds of the motion for new trial it is asserted ... that the court refused to allow the defendant to adduce ... evidence of self-defense under the plea of not guilty, and ... required him to plead specially. While this ... ...