Powell v. State

• Decision Date: 15 December 1942
• Docket Number: 2 Div. 714.
• Citation: 30 Ala.App. 606,10 So.2d 867
• Parties: POWELL v. STATE.
• Court: Alabama Court of Appeals

10 So.2d 867

30 Ala.App. 606

POWELL v. STATE.

2 Div. 714.

Alabama Court of Appeals

December 15, 1942

Curtis L. Moody, of Mobile, for appellant.

Wm N. McQueen, Atty. Gen., for the State.

BRICKEN Presiding Judge.

Upon the filing of this record with the clerk of this court, it was ascertained that the judgment entry contained thereon was wholly defective and insufficient to support the appeal. This fact being made known to the court a certiorari was awarded directing the clerk of the lower court to make diligent search of the records and proceedings in this cause and certify instanter, a full and complete transcript of the judgment entry and other proceedings had in the lower court.

In response to said writ the clerk below made returns by forwarding with said writ what purports to be a true and correct judgment entry as appears upon the records in the court below.

From said judgment it appears that the appellant, defendant below was indicted at the Spring Term 1942 of said court, and was charged with the offense of manslaughter in the second degree, in that, he unlawfully, but without malice, or the intention to kill, killed Tom Whorley, by negligently running an automobile against him, or by negligently driving an automobile against a truck in which the said Tom Whorley was at the time riding, thereby causing the death of said Tom Whorley, etc.

This appeal is upon the record proper, there being no bill of exceptions. However, under the provisions of the statute Title 15, § 389, Code 1940, the duty devolved upon the appellate court is to examine the record and ascertain its regularity and to consider all questions thereon. This, the court has done in this case, and as a result, in the performance of this duty, we have discovered that the judgment entry, as shown in the record, is an anomaly, and under no phase of any law can it be sustained as it here appears.

In the first place, said judgment entry, reads as follows "April 14, 1942-on this day came the solicitor who prosecutes for the State, and also came the defendant in his own proper person and by his attorney into open court, and the said defendant being duly arraigned upon said indictment in open court, for his plea thereto says 'not guilty,' and the said defendant waives trial by jury in this cause. Issue being joined, thereupon a trial is had before the court without a jury, and the same being considered and understood by the court, it is, therefore, the order, judgment and decree of the court that the defendant, Jim Powell, is guilty of manslaughter in the second degree as charged in the indictment."

Manslaughter in the second degree is an unlawful homicide, and under the prevailing statute, Title 14, § 322, it is provided that punishment upon conviction for said offense shall be at the discretion of the jury, hence the trial judge was without authority to usurp the duty which devolved upon the jury. In fixing the punishment the court transcended its authority. Bates...