Ex parte Mancil
| Decision Date | 10 May 1928 |
| Docket Number | 4 Div. 371 |
| Citation | 217 Ala. 486,116 So. 908 |
| Parties | Ex parte MANCIL. |
| Court | Alabama Supreme Court |
Certiorari to Court of Appeals.
Petition by Frank Mancil for certiorari, to be directed to the Court of Appeals, to revise the judgment and decision of that court on the petition of Frank Mancil for writ of mandamus directed to Hon. W.L. Parks, Judge (116 So. 907). Writ of certiorari granted, and judgment reversed and cause remanded.
Brassell & Brassell, of Troy, for petitioner.
Charlie C. McCall, Atty. Gen., opposed.
The petitioner was indicted, tried and convicted of a felony in the circuit court of Pike county, and, as stated in the opinion of the Court of Appeals, 116 So. 907, "at the time of sentence, notice of appeal was given, but the court refused to suspend the judgment pending the appeal, because no exceptions were reserved."
Contending that a suspension of the execution of the judgment by the trial court pending his appeal, and on his election, is a matter of right, he applied to the Court of Appeals for mandamus to the trial court to compel such suspension.
The Court of Appeals denied the prayer of his petition on the ground that, it appearing that no exceptions were reserved on the record for consideration of that court, though the time for presenting a bill of exceptions had not expired, the trial court properly refused to suspend the execution of the judgment, citing Ex parte Knight, 61 Ala. 482, and White v. State, 134 Ala. 197, 32 So. 320, as authorities for the conclusion stated in the opinion.
The decision in Ex parte Knight, supra, was predicated on the provisions of the statute regulating and providing for review in criminal cases, as they appear in the Code of 1876, §§ 4978-4980, and under this system it was held that "the remedy being a substitute for an appeal or writ of error, and given by statute, to obtain its benefits there must be a substantial compliance with all the statute requires" that an adverse ruling of the court apparent upon the record proper, followed by a statement in the judgment of the trial court that, "questions of law having arisen in this case for the decision of the Supreme Court of Alabama, the sentence is suspended pending appeal," was not sufficient to invoke the jurisdiction of this court, but it must affirmatively appear "that a question of law was reserved, and that it was done 'at the time of the decision of the question.' " Ex parte Knight, supra; Bolling v. State, 78 Ala. 469. If the question raised is pertinent to a matter not to be shown by the record of the trial court, the statute authorized a bill of exceptions, to be signed in term time, or thereafter by agreement of the parties. Ex parte Cameron, 81 Ala. 87, 1 So 20.
Of the system then prevailing, it was said in Knight's Case that:
of law, as a suspension "of the judgment of conviction, as does the reservation of a question for the consideration of this court." Ex parte Knight, 61 Ala. 482, 485, 486.
Before the decision of White v. State, 134 Ala. 197, 32 So. 320, another statute was introduced into the system, appearing first in the Code of 1896 as section 4313, providing:
"Any person convicted of a criminal offense in the circuit court, or other court from which an appeal lies directly to the Supreme Court may appeal from the judgment of conviction to the Supreme Court."
Other changes were made. What was section 4978 of the Code of 1876, brought forward in subsequent Codes without change was amended by the act of December 17, 1894, by adding to that statute the following provisions:
"But it is not necessary to reserve an exception to the giving or refusal of a special charge asked in writing, nor to the ruling of the court upon a demurrer to an indictment or other pleading, nor to any ruling or action of the court which is required to appear of record; but in every such case an exception is presumed on appeal." Code of 1896, § 4312.
The statute which constituted 4980 of the Code of 1876, and 4511 of the Code of 1886, was revised and brought forward into the Code of 1896 as section 4318, providing:
"When any question of law is reserved in case of a felony, and it shall be made known to the court that the defendant desires to *** appeal to the Supreme Court, judgment must be rendered against the defendant, but the execution thereof must be suspended pending the appeal, and the defendant held in...
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Jiles v. State
...affirmed. The sentence was duly suspended pending defendant's appeal-though no exceptions are shown to have been reserved (Ex parte Mancil, 217 Ala. 486, 116 So. 908)-in pursuance statutory provisions for an entry of record that defendant appeals from the judgment; and, the time fixed by th......
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State v. Welch (In re Welch.), 1120549.
...of the judgment pending the appeal and to allow the defendant bail, in bailable cases, as a matter of right.”Ex parte Mancil, 217 Ala. 486, 487, 116 So. 908, 909 (1928) (emphasis added). See Ex parte Jones, 444 So.2d 888, 890 (Ala.1983) (describing bail pending appeal as “a right granted by......
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Patterson v. State
...execution at the time of rendering judgment. White v. State, 134 Ala. 197, 32 So. 320. Code 1940, T. 15, § 372. But see Ex parte Mancil, 217 Ala. 486, 116 So. 908. In White, supra, it was held that without such an order White, after conviction, was required to enter the penitentiary and the......
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Jackson v. Nesmith, 8 Div. 478.
...1923, § 3243. The right to suspension of the execution of the judgment in a conviction for a felony was fully considered in Ex parte Mancil, 217 Ala. 486, 116 So. 908. ruling of the trial court was in accord with these views, and the judgment awarding the mandamus is due to be affirmed. It ......