Smith v. State

• Decision Date: 19 December 1916
• Docket Number: 6 Div. 221
• Citation: 73 So. 824,15 Ala.App. 478
• Parties: SMITH v. STATE.
• Court: Alabama Court of Appeals

73 So. 824

15 Ala.App. 478

SMITH v. STATE.

6 Div. 221

Court of Appeals of Alabama

December 19, 1916

Appeal from Criminal Court, Jefferson County; A.H. Alston, Judge.

Amos Smith was convicted of train wrecking, and he appeals. Affirmed.

Thompson Green & Thompson, and James Barton, all of Birmingham, for appellant.

W.L Martin, Atty. Gen., H.G. Davis, Asst. Atty. Gen., and Hugh Morrow, of Birmingham, for the State.

EVANS J.

The appellant was convicted of train wrecking, which, under the statute, may be punished capitally at the discretion of the jury. Acts 1911, p. 381.

No bill of exceptions is incorporated in the transcript, and the appeal comes up on the record proper. Under the duty imposed by statute, we have searched the record for error; but in the absence of a bill of exceptions there is nothing presented by the record for revision. For aught that appears in the record, the judgment and proceedings had in support thereof are regular, and this presumption obtains in the absence of specific objection appropriately raising some question as to those matters authorized to be omitted in making up the transcript. Acts 1915, p. 708; George Burks' Case, 73 So. 824, present term.

We might remark, however, that the motion filed to quash the indictment is not revisable, as it is within the discretion of the trial court as to whether it will put the defendant to his demurrer or plea in abatement. Bryant's Case, 79 Ala 282; Johnson's Case, 134 Ala. 54, 32 So. 724; Mosely's Case, 1 Ala.App. 108; Josiah Clark's Case, 72 So. 291. Moreover, the defendant, having pleaded in bar, waived his right to move in quashal. He should have first sought the permission of the court to withdraw his plea, and then have interposed his motion. Johnson's Case, supra; Oakley's Case, 135 Ala. 15, 33 So. 23.

Furthermore, the action of the trial court on the written motion does not properly appear of record; the bench note of the trial judge, entered to the effect that the motion was overruled, was but a memorandum for the clerk in enrolling or writing up the order or judgment of the court. See 3 Mayf.Dig. 11,§ 84. See also Ewing v. Wofford, 122 Ala. 439, 25 So. 251.

In view of the widespread practice obtaining in attempting to test the sufficiency of indictments by motions to quash, instead of by demurrer, we take occasion here to remark that the proper way to compel appellate review is by demurrer, as error cannot be...