Rivers v. State

• Decision Date: 01 June 1915
• Docket Number: 164
• Citation: 13 Ala.App. 362,69 So. 387
• Parties: RIVERS et al. v. STATE.
• Court: Alabama Court of Appeals

69 So. 387

13 Ala.App. 362

RIVERS et al. v. STATE.

No. 164

Court of Appeals of Alabama

June 1, 1915

Appeal from Circuit Court, Clark County; John T. Lackland, Judge.

Criss Rivers and Robert Vinters were convicted of larceny of a cow and they appeal. The case was submitted on motion to establish a bill of exceptions, to dismiss the appeal, and on the merits. Bill of exceptions established, motion to dismiss overruled, and judgment affirmed.

Brown J., dissenting.

F.E. Poole, of Grove Hill, for appellants.

Wm.L Martin, Atty. Gen., and J.P. Mudd, Asst. Atty. Gen., for the State.

BROWN J.

This case was submitted on the motion to establish a bill of exceptions and on the merits, along with a motion to dismiss the appeal. The motion to dismiss is predicated on the failure of appellants to comply with Supreme Court rule 43, published in the official reports of that court (175 Ala. xx, 61 South. viii), requiring defendants who have been adjudged guilty of crime in any of the courts of this state from which an appeal lies to this or the Supreme Court, and who desire to exercise such right of appeal, to file with the clerk of the trial court a truly dated written statement, the form and contents of which are therein prescribed.

In the record made up by the clerk of the trial court and forwarded to and filed with the clerk of this court, on which the case now stands submitted, not a single adverse ruling to the appellants is shown other than the judgment pronouncing them guilty, followed by an appropriate sentence, and no bill of exceptions was presented to the trial judge, for his signature, showing that questions of law were reserved during the trial for review by this court, but motion is here made to establish a bill of exceptions under the statute (Code, § 3022) authorizing such procedure in case a vacancy in the office of the trial judge occurs during the time for presenting such bill to him for his signature. The only entry on the record indicating a purpose on the part of defendants to take an appeal is the following recital:

"Questions of law having been reserved for consideration of the Supreme Court, and the defendants having made known their desire to prosecute an appeal from the verdict and judgment of the trial court, it is considered and adjudged that the execution of the judgment and sentence herein be suspended pending such appeal."

There is no pretense that any effort was made to comply with rule 43, and no certificate of appeal was made by the clerk of the trial court and forwarded to and filed with the clerk of the appellate court. The question therefore is: What, if anything, is necessary for a defendant who has been convicted to do if he desires to exercise the right of appeal from the judgment of conviction and have the same reviewed? In Ex parte Knight, 61 Ala. 482, the statutes regulating appeals, then of force in the Code of 1876, §§ 4978-4983, inclusive, were construed, some of which are here set out, as a basis for the conclusions hereafter stated:

"Any question of law arising in any of the proceedings in criminal cases, tried in the circuit or city court, may be reserved by the defendant, but not by the state, for the consideration of the Supreme Court; and if the question does not distinctly appear on the record, it must be reserved by bill of exceptions, duly taken and signed by the presiding judge, as in civil cases." Code 1876, § 4978.

"When any question of law is reserved for the consideration of the Supreme Court, it is the duty of the clerk of the court in which the case was tried to make out a full and accurate transcript of the record, attach his certificate thereto, and transmit it to the clerk of the Supreme Court, within twenty days after the adjournment of the court from which the appeal is taken." Code 1876, § 4979.

"When such question is reserved in case of a felony, judgment must be rendered against the defendant, but the execution thereof must be suspended until the case is decided by the Supreme Court." Code 1876, § 4980.

In misdemeanor cases, in addition to the above, provisions were made for bail pending appeal.

"In cases taken to the Supreme Court under the provisions of this chapter, no assignment of errors, nor joinder in error, is necessary; but the court must render such judgment on the record as the law demands." Code 1876, § 4990.

Under these statutes it was ruled that the act of taking an appeal--the jurisdictional fact upon which the power of the Supreme Court depended--was evidenced by reserving an exception on the record to a ruling of the trial court adverse to the defendant at the time the ruling was made, and if this ruling was, with respect to a part of the procedure, a record of which the law required to be kept, such as a ruling of the court on demurrer to the indictment, or plea, or on motion in arrest of judgment, the exception reserved must appear on the face of the record in the judgment entry, and, if the ruling on matters not necessarily of the record proper, it was the duty of the defendant to have it made a part of the record of the appellate court by bill of exceptions, which he was required to prepare and present to the trial judge within the time allowed by law, truly stating the points and sufficient of the facts to make it clear to the appellate court, and showing that an exception was reserved to the ruling at the time it was made by the trial court; that no duty rested upon the clerk of the trial court to make up the transcript and furnish it to the clerk of the Supreme Court with certificate of appeal until such question was so reserved, and if such transcript was made up, certified, and furnished and filed with the clerk of the Supreme Court, the court was without jurisdiction to review the trial court; that the trial court had no authority to suspend the sentence on the mere suggestion that the defendant desired to appeal, in the absence of a showing on the record that some question of law had been properly reserved for review by the Supreme Court; and that such appeal would be dismissed. Ex parte Knight, 61 Ala. 482; Bolling v. State, 78 Ala. 469; Ex parte Cameron, 81, 88; Durrett v. State, 133 Ala. 120, 32 So. 234; Diggs v. State, 77 Ala. 68; Taylor v. State, 112 Ala. 69, 20 So. 848; Woodson v. State, 170 Ala. 88, 54 So. 191; Campbell v. State, 182 Ala. 18, 62 So. 57; State v. Carter, 7 Ala.App. 2, 60 So. 941; White v. State, 134 Ala. 198, 32 So. 320.

In Bolling v. State, supra, the court, reviewing its enunciations in Ex parte Knight, supra, and applying them to the record in that case, said:

"In the present case, the ruling, of which review is sought, arises on demurrer sustained to defendant's plea of former jeopardy. This appears of record, as it rightfully should do, and hence could not be raised by bill of exceptions. The facts shown by the record are as follows: On November 20, 1885, the state's demurrer to defendant's pleas was sustained, the defendant put on trial on plea of not guilty, and a verdict of guilty rendered by the jury. The record is silent as to

the reservation of any question at that time. Ten days afterwards sentence was pronounced on the defendant, and in the sentence is found the following clause: 'Questions of law having arisen in this case for the decision of the Supreme Court of Alabama, this sentence is suspended pending an appeal to said court.' This is all the record contains to found an argument on that any question of law was reserved for the consideration of this court. It is insufficient, and the case is not properly before us."

This utterance was followed by an order dismissing the appeal.

In Ex parte Cameron, supra, we find this utterance:

"The duty of the clerk [to make up the record on appeal] does not arise unless and until the reservation of a question of law for the consideration of the Supreme Court is apparent on the record, or made apparent by a bill of exceptions. It is not affirmatively shown that any such reservation is apparent on the record, and no bill of exceptions was taken. If it was necessary to make the reservation apparent by a bill of exceptions, it was incumbent on the defendant to prepare and tender such bill in proper time to the presiding judge. The purpose of the statute is to secure a hearing and decision on appeal without undue delay, and is in harmony with the policy which gives a preference to criminal cases in this court, and requires their speedy determination."

And in Bolling v. State, supra, it was held that, until an appeal was taken by the defendant as provided by the statute, the trial court had no authority to suspend the execution of the sentence, the utterance of the court on that subject being:

"Still, we said that, to justify a consideration of the case without a writ of error, the record must show that a question of law was reserved, and that it was done 'at the time of the decision of the question.' Otherwise, we said, the trial court had no authority to suspend the execution of the sentence."

These statutes were carried into the Code of 1886 as sections 4508-4512, without changes, and section 4508 was carried forward into the Code of 1896 as section 4312, embodying the amendments thereof accomplished by the Acts of 1894, p. 126, which added to the section as it existed in the previous Codes the following provision:

"But it is not necessary to reserve an exception to the giving or refusal of a special charge asked in writing, nor to the ruling of the court upon a demurrer to an indictment or other pleading, nor to any ruling or action of the [trial] court which is required to appear of record; but in every such case an exception is presumed on appeal."

In addition to this change, a new section (4313) was incorporated into the Code,...