Ex parte Tanner
| Decision Date | 28 January 1929 |
| Docket Number | 3 Div. 627. |
| Citation | 219 Ala. 7,121 So. 423 |
| Parties | EX PARTE TANNER. |
| Court | Alabama Supreme Court |
Habeas corpus proceeding by Heabern Tanner to secure his release from custody under sentence. On question certified by the Court of Appeals under Code 1923, § 7311. Question answered and petitioner ordered remanded.
Court having directed jury to fix punishment, should refuse to receive verdict without compliance with that direction.
Under Code, 1923, § 7311, the following question was certified to the Supreme Court:
To the Honorable Supreme Court of Alabama-Your Honors:
The judges of the Court of Appeals of Alabama are unable to reach a unanimous conclusion, or decision on or of the following question:
"Where a defendant is regularly indicted and tried for the offense denounced by Code of Ala. Sec. 5411, and is, by the jury trying the case regularly found guilty, but where the said jury fails to fix his punishment, as provided in the said Statute, and where, over defendant's objection, the trial Judge proceeds to, himself, fix the punishment, at a term of imprisonment within the limits prescribed by the said Statute, and where the defendant does not appeal from the judgment of conviction and sentence imposed upon him but proceeds to enter upon the performance of said sentence, and while confined in the State penitentiary under same, sues for a writ of habeas corpus, commanding the warden of the penitentiary to release him, should his petition be granted-the sole ground for same being the defendant's affirmation, or allegation that the judgment and sentence under which he is held and detained are void because of the fact that his punishment was fixed by the Court, and not by the jury, trying his case?"
Under the provisions of Code of Ala. 1923, § 7311, I desire to certify to you the above question, the answer to which is controlling in the disposition of the case of Heabern Tanner v. State, 3d Div. 627 now pending in our Court on appeal.
Very respectfully,
James Rice, Judge of the Court of Appeals of Alabama.
Response to Certified Question.
To the Honorable Court of Appeals of Alabama:
Responding to your inquiry as follows:
"Where a defendant is regularly indicted and tried for the offense denounced by Code of Alabama sec. 5411, and is by the jury trying the case found guilty, but where the said jury fails to fix his punishment, as provided in the said statute, and where, over defendant's objection, the trial judge proceeds to, himself, fix the punishment, at a term of imprisonment within the limits prescribed by the said statute, and where the defendant does not appeal from the judgment of conviction and sentence imposed upon him, but proceeds to enter upon the performance of said sentence, and while confined in the State penitentiary under same, sues for a writ of habeas corpus, commanding the warden of the penitentiary to release him, should his petition be granted-the sole ground for same being the defendant's affirmation, or allegation that the judgment and sentence under which he is held and detained are void because of the fact that his punishment was fixed by the court, and not by the jury, trying his case?"
The circuit court is one of general jurisdiction in respect to the offense inquired about. Recitals in its judgment record of jurisdictional facts import absolute verity unless contradicted by other portions thereof. Blount County Bank v. Barnes (Ala. Sup.) 118 So. 460; White v. Simpson, 124 Ala. 238, 27 So. 297; L. & N. R. Co. v. Tally, 203 Ala. 370, 83 So. 114; 15 Corpus Juris, 827.
The only inquiry to determine the result is whether the judgment of sentence is a nullity. If it is not, petitioner is not entitled to his release, though there may be error or irregularity in it. Cofer v. State, 168 Ala. 171, 52 So. 934; Ex parte Hill Adams, 170 Ala. 105, 54 So. 501; Ex parte Brown, 63 Ala. 187; Towery v. State, 143 Ala. 59, 39 So. 310; 29 Corpus Juris, 31, 51; Fourment v. State, 155 Ala. 109, 46 So. 266.
The circuit court had jurisdiction of the offense and of the person of petitioner, and the punishment was within the limits and in the manner provided by law. There is no doubt that under such circumstances it was competent for it to proceed to a final determination.
The court, having directed the jury to fix the punishment, should have refused to receive the verdict without a compliance with that direction (Bates v. State, 170 Ala. 26, 54 So 432; Washington v. State, 125 Ala. 40, 28 So. 78), and his acceptance of the...
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Ex parte Kelly
... ... judgment will be treated as a nullity on attack. 15 R. C. L ... § 358, p. 880 ... The ... rule is well stated in Blount County Bank v. Barnes, ... 218 Ala. 230, 118 So. 460; Campbell Motor Co. v ... Stanfield, 218 Ala. 663, 120 So. 475; Ex parte Tanner, ... 219 Ala. 7, 121 So. 423 ... In ... Jackson Realty Co. v. Yeatman, 219 Ala. 3, 121 So ... 415, it is declared upon the authority of McDonald v ... Mobile Life Ins. Co., 56 Ala. 468, and Westbrook v ... Hayes, 137 Ala. 572, 34 So. 622, that the bill must set ... forth the ... ...
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McCart v. State
...not entitle the defendant to his discharge as having been once in jeopardy.' Washington v. State, 125 Ala. 40, 28 So. 78; Ex parte Tanner, 219 Ala. 7, 121 So. 423. We say this because the defendant in the case at bar will not be put twice in jeopardy for the same offense when he is tried ag......
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Calhoun v. Calhoun
...recital of a finding of jurisdiction in the decree, imports verity, unless contradicted by other portions of the record. Ex parte Tanner, 219 Ala. 7, 121 So. 423; Florence Gin Co. v. City of Florence, 226 Ala. 478, 147 So. The basis of the motion of appellant was that the decree is void on ......
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Norris v. State, 6 Div. 213
...freedom. "It is clear by analogy from the answer to the certified question of this court given by our Supreme Court in Ex parte Tanner, 219 Ala. 7, 121 So. 423 [1929], that the trial judge's fixing punishment instead of his putting it to a jury is error but not of such degree as to void the......