Fendley v. State, 7 Div. 15

Decision Date10 April 1951
Docket Number7 Div. 15
Citation36 Ala.App. 149,53 So.2d 397
PartiesFENDLEY v. STATE.
CourtAlabama Court of Appeals

Roy D. McCord, of Gadsden, for appellant.

Si Garrett, Atty. Gen., and M. Roland Nachman, Asst. Atty. Gen., for the State.

CARR, Presiding Judge.

The accused was tried and convicted in the court below of violating the prohibition law.

The evidence for the State tended to show that the defendant had illicit whiskey in his possession.

Incident to the introduction of the evidence, the court did not at any time rule against the position of the appellant's attorney.

The general affirmative charge was not requested in defendant's behalf, neither was a motion for new trial filed.

We have often held that our appellate review is confined to those questions which are raised at nisi prius. Kornegay v. State, 34 Ala.App. 274, 38 So.2d 606; Parcus v. State, 19 Ala.App. 592, 99 So. 662.

The rule provides that written charges must be marked 'given' or 'refused' and signed by the trial judge. The written instructions in the instant case do not bear such endorsements. Title 7, Sec. 273, Code 1940; Berry v. State, 231 Ala. 437, 165 So. 97; Gable v. State, 31 Ala.App. 280, 15 So.2d 594.

At the time the appellant was before the court for sentence, over objections, the judge allowed the solicitor to make proof by the court records that at a prior time the defendant pleaded guilty to violating the prohibition law.

It was proper to bring to the attention of the court the fact of a previous conviction in order that there might be a compliance with Section 99, Title 29, Code 1940. Johnson v. State, 222 Ala. 90, 130 So. 777.

The judgment below is ordered affirmed.

Affirmed.

Supplemental Opinion

PER CURIAM.

After the Supreme Court denied certiorari in this cause, we observe that the judgment entry fails to show that the defendant was sentenced for the fine and costs. This is required. Crane v. State, 33 Ala.App. 284, 32 So.2d 784.

The judgment below stands affirmed, but the cause is remanded to the court below for proper sentence.

Affirmed. Remanded for proper sentence.

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7 cases
  • Thomas v. State
    • United States
    • Alabama Court of Appeals
    • 19 Abril 1960
    ...the record, the charge is not marked refused and signed by the trial judge. Section 273, Title 7, Code of Alabama 1940; Fendley v. State, 36 Ala.App. 149, 53 So.2d 397; Freeland v. State, 28 Ala.App. 268, 182 So. 414; Batson v. State, 216 Ala. 275, 113 So. 300; Adcock v. State, 30 Ala.App. ......
  • Hill v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 13 Junio 1972
    ...review the refused affirmative charge, or any other refused charges, as such are not considered as part of the record. Fendley v. State, 36 Ala.App. 149, 53 So.2d 397; Jackson v. State, 32 Ala.App. 388, 26 So.2d 423; Mason v. State, 16 Ala.App. 405, 78 So. 321. Further, by the clerk inserti......
  • Wilson v. City of Birmingham
    • United States
    • Alabama Court of Appeals
    • 29 Junio 1951
    ... ... 36 Ala.App. 148 ... CITY OF BIRMINGHAM ... 6 Div. 242 ... Court of Appeals of Alabama ... June 29, 1951 ... Assignment 7 is based on the court's ruling in allowing this testimony ... State, 29 Ala.App. 139, 193 So. 192; Brooks v. City of ... ...
  • Tillman v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 29 Enero 1974
    ...291 So.2d 373 ... 52 Ala.App. 282 ... Dillard TILLMAN, Jr ... 1 Div. 399 ... Court of Criminal Appeals of Alabama ... Jan. 29, 1974 ... State, 144 Ala. 14, 40 So. 405; Smith v. State, 103 Ala. 57, 15 So. 866. Such examination is also permitted for the purpose of either ... Shepard v. State, 20 Ala.App. 627, 104 So. 674; Fendley v. State, 36 Ala.App ... 149, 53 So.2d 397, cert. den. 255 Ala. 656, 53 So.2d 398; Alabama Digest, Volume 7, Criminal Law, k1028 ...         The next issue here presented is ... ...
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