Clanton v. State

• Decision Date: 16 June 1892
• Citation: 11 So. 299,96 Ala. 111
• Parties: CLANTON v. STATE.
• Court: Alabama Supreme Court

11 So. 299

96 Ala. 111

CLANTON v. STATE.

Supreme Court of Alabama

June 16, 1892

Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.

Thomas W. Clanton was convicted under an indictment for gambling and appeals. Affirmed.

John Gindrat Winter, for appellant.

Tennent Lomax, for the State.

COLEMAN J.

At the March term, 1887, of the city court of Montgomery, the defendant pleaded guilty to the second count of the indictment, which charged him with the offense of having played "at a game with cards or dice in a public house or some other public place," etc. Upon his plea of guilty, the jury assessed a fine of $20. At this term there was no judgment of the court rendered upon the verdict of the jury. At the March term, 1892, the state, by its solicitor, moved the court for a "judgment nunc pro tunc. " The defendant resisted the motion- First, upon the ground "that the court has no power to sentence after the adjournment of the term at which the conviction was had;" and, second, "that the state by its solicitor had discontinued the cause." The judgment entry of the court declares that the motion of the solicitor for a judgment nunc pro tunc "is granted," and after remitting the fine, and ascertaining that the cost had not been paid or confessed with security, the judgment proceeds as follows "It is the judgment and sentence of the court that the defendant perform hard labor for Montgomery county for the term of ___ days, to begin from this the 14th day of March, 1892." The motion of the state, by its solicitor, avers "that at each term of said court subsequent to the February term, 1887, and up to the October term, 1888, when defendant was rearrested and a new bond given, the said cause was regularly continued, and from said October term, 1888, up to and including the October term, 1891, said cause was regularly continued; that at no time has any other or further order been made in said cause than herein appears." The bill of exceptions has the following statement: "And the evidence for the state showed the facts set out in the motion to be true." No evidence introduced by the defendant conflicted with this statement, and the record shows that at the July term, 1888, the cause was continued by the defendant. On this state of facts the following authorities amply show there has been no discontinuance of the cause, and the affirmative action of the defendant in proving a continuance at the July term, 1888, would be held a waiver had there been a mere discontinuance prior to that time: Torrey v. Forbes, (Ala.) 10 South. Rep. 320; Ex parte Hall, 47 Ala. 675; Walker v. Cuthbert, 10 Ala. 218; Drinkard's Case, 20 Ala. 9; Reeves v. State, (Ala.) 11 South. Rep. 296. It is...