Lyles v. State
| Decision Date | 09 June 1959 |
| Docket Number | 7 Div. 543 |
| Citation | 122 So.2d 724,41 Ala.App. 1 |
| Parties | J. C. LYLES v. STATE |
| Court | Alabama Court of Appeals |
Hinton & Torbert and Rowan S. Bone, Gadsden, for appellant.
John Patterson, Atty. Gen., and Jerry L. Cole, Asst. Atty. Gen., for the State.
Appellant was convicted under an indictment charging the offense of transporting prohibited liquors or beverages in quantities of five gallons or more.
The record shows that on March 13, 1958, defendant was tried and convicted in the Circuit Court of Etowah County, Alabama, on the indictment upon which the present conviction is based. The recitals of the judgment show 'the issues being joined by going to trial without arraignment, and without objection or motion being filed by defendant, * * *.' The case was continued to March 27, 1958, for sentence. On that day the court entered this order: 'On this the 27th day of March, 1958, It is ordered and adjudged by the court that the verdict of jury heretofore rendered in this case on March 13, 1958, be and the same is hereby set aside ex mero motu.'
When the case was called for trial on May 28, 1958, defense counsel moved that the case be dismissed stating as grounds for said motion that the court had failed to comply with the provisions of Section 258 of Title 15, Code 1940, by setting forth the facts in the judgment entry showing the necessity for setting the verdict aside. Thereupon the court amended the order of March 27, nunc pro tunc, by adding the words 'for the reason there was no arraignment of the defendant', and overruled the motion to dismiss. Exception was reserved to the ruling on the motion and to the additional entry on the docket.
Section 258 or Title 15, Code, supra, relates to the procedure to be followed when the indictment is quashed, for any of the causes set forth in said section, and a second indictment is to be preferred. Coleman v. State, 71 Ala. 312.
Courts of record have inherent power to set aside and vacate their orders or judgments within the term and for common law causes. Ingalls Shipbuilding Corp. v. Cahela, 251 Ala. 163, 36 So.2d 513; Long v. City of Opelika, 37 Ala.App. 200, 66 So.2d 126.
It is the duty of the trial court to set aside the judgment where there has been no plea to the indictment. Collins v. State, 21 Ala.App. 192, 106 So. 624. No error appears in the court's denial of the motion to dismiss. The notation of the trial judge showing the reason for setting the judgment aside was surplusage. It did not change or modify the judgment and the defendant was not prejudiced thereby.
The following appears in the record: By defense counsel: 'Before he enters a plea, your Honor, we have a sworn plea that I would like to enter.
'Mr. Hinton: I would like to renew it, with the Court's permission, and with the consent of Mr. Stivender, I will put a written plea of autrefois convict, as set out in Title 15, Section 258.
'The Court: All right.
'Mr. Hinton: And I will also, for the sake of brevity, and with the Court's permission and Mr. Stivender's permission, enter a plea of former jeopardy in the form and substance as provided by the acts of...
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