Patterson v. State

• Decision Date: 28 June 1934
• Docket Number: 8 Div. 581.
• Citation: 229 Ala. 270,156 So. 567
• Parties: PATTERSON v. STATE.
• Court: Alabama Supreme Court

156 So. 567

229 Ala. 270

PATTERSON v. STATE.

8 Div. 581.

Supreme Court of Alabama

June 28, 1934

Rehearing Denied Oct. 4, 1934.

Appeal from Circuit Court, Morgan County; W. W. Callahan, Judge.

Haywood Patterson was convicted of rape, and he appeals.

Affirmed.

Samuel S. Leibowitz, Jos. R. Brodsky, Osmond K. Fraenkel, George Rosier, and Carol King, all of New York City, and George W Chamlee, Sr., of Chattanooga, Tenn., for appellant.

Thos E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst Atty. Gen., for the State.

BOULDIN Justice.

Appellant Haywood Patterson, was convicted of the offense of rape, and his punishment fixed at death.

The cause was before us on former appeal. Patterson v. State, 224 Ala. 531, 141 So. 195.

Other decisions on appeals by defendants jointly indicted with this appellant are Weems et al. v. State, 224 Ala. 524, 141 So. 215, and Powell et al. v. State, 224 Ala. 540, 141 So. 201.

The judgments of affirmance in this court were reversed for denial of the right of counsel, or inadequate provision for counsel, to represent the defendants in the trial court. Powell et al. v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158, 84 A. L. R. 527.

We have now under submission, being considered along with this cause, the appeal of Clarence Norris v. State of Alabama (Ala. Sup.) 156 So. 556, from a conviction under the same indictment.

In this cause, Patterson v. State, the state submits a motion to strike the bill of exceptions because not presented within the time required by law.

The minutes show the verdict returned and judgment of conviction thereon on December 1, 1933, and sentence pronounced on December 6, 1933.

The time for presenting bills of exceptions runs from the date of the judgment of guilty, not from the date of sentence. Lewis v. State, 194 Ala. 1, 69 So. 913.

The bill of exceptions was presented March 5, 1934, the ninety-fourth day. This was too late unless the time was extended by the intervention of a motion for new trial.

Code, § 6433 provides: "Bills of exceptions may be presented to the judge or clerk at any time within ninety days from the day on which the judgment is entered, and not afterwards. * * * Presentation of the bill of exceptions within ninety days after the granting or refusing of a motion for a new trial shall be sufficient to preserve for review the rulings of the trial court on the trial of the original cause, as well as the ruling of the court on the motion for a new trial."

A motion for new trial was filed December 29, 1933, which was afterwards stricken by the trial court on the ground that it was filed after the term of the court had expired, that thereby the judgment had become final, and the court was without jurisdiction to entertain, hear, and pass upon a motion for new trial.

This ruling was in accord with Morris v. Corona Coal Co., 215 Ala. 47, 109 So. 278, a case in which this question was directly presented.

The judgment in that case had been rendered on December 19, 1924, motion for new trial presented on December 27, 1924, and duly passed to January 5, 1925, when it was taken under advisement and passed to January 12, 1925. The trial court held that objection to action on the motion was well taken, that being filed after the end of the term, the court was without jurisdiction to hear it, that the motion was null and void, and must be stricken. In approving such ruling, this court said: "The statute provides that after the lapse of 30 days from the date on which the judgment or decree was rendered the court shall lose all power over it as completely as if the end of the term had been on that day; and, we add, unless the motion therefor was filed, called to the attention of, and passed by, the court before the adjournment of the term, and before the finality of the judgment or decree as provided by the statute after a lapse of 30 days from the date of its rendition. The provision of the statute for the lapse of 30 days as to such motions did not extend the term of the court as fixed by law, though the 30 days from rendition of a valid judgment or decree had not expired." Morris v. Corona Coal Co., 215 Ala. 47, 49, 109 So. 278, 279.

The governing statutes there construed were Code, §§ 6667, 6670. Both these statutes are codified from the Acts of 1915, p. 707, §§ 1 and 3.

Prior thereto all motions for new trials were required to be made within the term under general well-known rules of law. The act of 1915 contemplated open courts for most of the year, but as to cases at law, terms were not abolished.

The terms run from the first Monday in January each year to the last Saturday in June, and from the first Monday after the Fourth of July to and including the last Saturday before Christmas day of every year.

The thirty-day statute making judgments final after thirty days was restrictive of the rule theretofore obtaining whereby the cause was considered in fieri, and judgments within the breast of the court, until the end of the term.

The effect of the Morris Case, supra, is to hold the thirty-day statute, not to abrogate the established rule that all judgments become final with the end of the term, not to extend the thirty-day period beyond the end of the term.

This ruling was not new, but in keeping with former decisions through a long period of years.

Thus, in Mt. Vernon Woodbury Mills v. Judges of Fifteenth Circuit, 200 Ala. 168, 75 So. 916, it was pointed out that this thirty-day statute was copied from prior local statutes applicable to Jefferson county (Acts 1888-89, p. 992,§ 20).

In Southern Railway Co. v. Griffith, 177 Ala. 364, 365, 58 So. 425, this section 20 is copied, and the court quoted and followed Ex parte Highland Avenue & Belt Railroad Company, 105 Ala. 221, 17 So. 182, saying: "* * * 'in order to give it (the motion) vitality at a subsequent term, and give the court power then to act on it, it must affirmatively appear from the record in the cause that the motion was made and called to the attention of the court, and continued during the term at which the judgment was rendered; otherwise the court is ever afterwards without power to entertain it."'

In many other cases the same principle is recognized.

By long-recognized rules, if a motion for new trial was made within the term, and was not acted upon, or continued by special order made during the term, the court lost power to act upon it at a subsequent term.

The same rule has been uniformly applied to motions made within the thirty-day period and during the term. In other words, the effect of the end of the term on the finality of judgments, and, therefore, on motions for new trial, is the same now as before the statute of 1915. Childers v. Samoset Cotton Mills, 213 Ala. 292, 104 So. 641; Mt. Vernon Woodbury Mills v. Judges of Fifteenth Circuit, supra.

We must, therefore, hold the motion for new trial in this case was functus; the judgment had become final; the motion could not invoke the jurisdiction of the trial court; it could not be entertained; no order of continuance to a future day could give it vitality.

The trial court had no discretion in the matter. He could not do other than disregard the motion or strike it.

The case is wholly different from those involving a waiver of a discontinuance of a motion duly made, wherein the jurisdiction of the court has attached, such as Greer et al. v. Heyer, 216 Ala. 229, 113 So. 14.

The proviso of Code, § 6433, giving ninety days after the granting or refusing of a motion for new trial, obviously means a motion for new trial which invokes the jurisdiction of the court to grant or deny it; postpones the finality of the judgment. The same proviso looks to incorporation of the ruling on the motion in the bill of exceptions for review along with rulings on the main trial.

This ninety-day extension can have no application to a case like this in which there was no motion for new trial before the judgment became final, where the document filed as a motion was functus from the beginning for want of jurisdiction to hear it. To hold otherwise would be to say the motion was abortive for all the purposes of such motion, but effective for the purpose of extending the time for a bill of...