McMahan v. State

• Decision Date: 07 September 1926
• Docket Number: 7 Div. 194
• Citation: 109 So. 553,21 Ala.App. 522
• Parties: McMAHAN v. STATE.
• Court: Alabama Court of Appeals

109 So. 553

21 Ala.App. 522

McMAHAN v. STATE.

7 Div. 194

Court of Appeals of Alabama

September 7, 1926

Appeal from Circuit Court, Etowah County; O.A. Steele, Judge.

Loyd McMahan was convicted of seduction, and he appeals. Reversed and remanded.

E.O McCord & Son, of Gadsden, for appellant.

Harwell G. Davis, Atty. Gen. and Chas. H. Brown, Asst. Atty. Gen for the State.

BRICKEN P.J.

The first insistence upon this appeal is that the judgment entry is erroneous. There is merit in this insistence as will hereinafter be noted. The judgment contained in this record and many others of like import which are here submitted induces us to reiterate what was said upon this subject by the Supreme Court in the case of Driggers v. State, 123 Ala 46, 26 So. 512. In that case the court said:

"The judgment entry in all criminal cases where there is conviction should recite in express words that the defendant is adjudged guilty by the court as found by the jury. There should always be the judgment of the court upon his guilt. In many cases, the judgment entries in this respect are faulty and more attention should be paid by the clerks and judges of nisi prius courts to this important feature. The essential requisites which such judgment entries should contain have been so often pointed out and suggested by this court it would seem that every clerk and judge in the state would know what they are. And it would seem that a compliance with these suggestions is a matter so simple, that all errors in this respect could easily be avoided. Besides, it is a matter of too much importance and a duty too clearly imposed by law that the mistake should so frequently occur. It can be accounted for upon no other theory than that the clerk who writes the minute entry is either incompetent or very careless in the discharge of his duties, and the presiding judge fails to read or have the minutes read as he is required by the statute to do."

The conviction of this appellant was for seduction, a felony, and the court imposed an indeterminate term of imprisonment in the penitentiary for not less than seven years nor more than ten years. In the judgment entry there appears no adjudication of guilt, as the law expressly requires, except such as might be implied from the sentence imposed. Carmichael v. State, 213 Ala. 264, 104 So. 638. Nor does the purported judgment show that the defendant was asked by the court whether he had anything to say why the sentence of the law should not be pronounced against him. The conviction of this defendant, as stated, was for a felony and the failure to propound this question when passing sentence in cases of felony is erroneous. Crim et al. v. State, 43 Ala. 53; Mullen v. State, 45 Ala. 43, 6 Am.Rep. 691; Johnson v. State, 47 Ala. 9, 30; Gray v. State, 55 Ala. 86; Spigner v. State, 58 Ala. 421; Boynton v. State, 77 Ala. 29. The error occasioned by the failure of the court to propound the above question does not of necessity require a reversal of the judgment of conviction in which event a retrial of the case would follow. The error in this respect is as to the sentence only, and, if no reversible error appears, the Case would be remanded for resentence only, the object being to place the case before the trial judge for correct action beginning at the point of his erroneous departure. Frazier v. State, 17 Ala.App. 486, 86 So. 173; Ex parte Robinson, 183 Ala. 30, 63 So. 177; Wells v. State, 19 Ala.App. 403, 97 So. 681 (on rehearing, ...