Patton v. State

• Decision Date: 27 February 1940
• Docket Number: 5 Div. 81.
• Citation: 194 So. 425,29 Ala.App. 215
• Parties: PATTON v. STATE.
• Court: Alabama Court of Appeals

194 So. 425

29 Ala.App. 215

PATTON v. STATE.

5 Div. 81.

Court of Appeals of Alabama

February 27, 1940

Appeal from Circuit Court, Chambers County; W. B. Bowling, Judge.

J. D Patton was convicted of murder in the second degree, and he appeals.

Affirmed.

R. C Wallace, of La Fayette, for appellant.

Thos S. Lawson, Atty. Gen., and John W. Vardaman, Asst. Atty Gen., for the State.

BRICKEN, Presiding Judge.

The indictment in this case charged appellant, defendant below with the offense of murder in the second degree, in that, he "unlawfully and with malice aforethought killed Ted Burton, by shooting him with a pistol, but without premeditation or deliberation," etc. Upon arraignment, and before entering upon the trial, the defendant in answer to the indictment filed demurrer thereto, which demurrer was overruled, and properly so, by the court. The trial was had upon the plea of not guilty, and resulted in the conviction of the defendant of murder in the second degree, as charged in the indictment. The jury, as the law requires, fixed his punishment. The term of imprisonment thus fixed was imprisonment for ten years. Whereupon the court duly and legally adjudged the defendant guilty in accordance with the verdict of the jury, and sentenced the defendant to imprisonment in the penitentiary for the term of ten years. From the judgment of conviction, pronounced and entered, this appeal was taken.

The cause was finally submitted in this court on December 21, 1939, the submission being had upon "Motion and merits."

The motion referred to was to strike the bill of exceptions on the grounds:

"2. That it affirmatively appears from the record that no compliance has been had with Section 6433 of the Code of Alabama, 1923, in that the bill of exceptions was not presented to the Trial Judge within ninety days from the day on which judgment was entered.

"3. That it affirmatively appears from the record that there has been no proper judgment on the motion for a new trial and that the bill of exceptions was not presented to the Trial Judge within ninety days from the date of judgment of conviction in said cause, as required by Section 6433 of the Code of Alabama, 1923."

We ascertain from the record the trial of this case, in the lower court, was had, the cause determined, and judgment of conviction entered, on March 13, 1939. It further appears from the record that the bill of exceptions was filed in the office of the clerk of the court, on July 22, 1939, and that said bill of exceptions was forthwith delivered or forwarded to the trial judge and received by him, as the endorsement of the trial judge discloses, on the 27th day of July 1939, and that said judge approved and signed same on the 1st day of August 1939.

It appears from the foregoing, that the grounds of the Attorney General in support of the motion to strike the bill of exceptions are sustained and the motion is in point, and well taken. It is, therefore, the order and judgment of this court that the foregoing motion is granted, and the bill of exceptions is stricken accordingly.

No brief has been filed in behalf of appellant, but after reading the record, we are inclined to the opinion, that appellant was under the impression the presentation of his bill of exceptions, as above indicated, was in ample time, under the Statute for that within thirty days from the date of the judgment in this case defendant made motion for a new trial. This cannot obtain, however, for the reason it affirmatively appears that the motion for a new trial, though, as stated, being filed in time, was not called to the attention of the court as the Statute requires (section 6670, Code 1923) and no action or ruling thereon by the court was invoked or had until many days after the lapse of thirty days from the date of the judgment.

As insisted by the Attorney General: "It is a well established principle of law that a motion for a new trial must not only be filed, but must also be heard or continued within thirty days from judgment. Therefore, the trial court lost all jurisdiction over the motion for a new trial at the end of thirty days from the date of judgment,...