Summary
In Lewis a conviction was reversed because defendant had been charged and tried for an offense other than that shown on the form of conviction.
Summary of this case from Trainor v. StateOpinion
September 12, 1944
An appeal from the Circuit Court for Calhoun County, E.C. Welch, Judge.
John D. Trammell for appellant.
J. Tom Watson, Attorney General, and John C. Wynn, Assistant Attorney General, for appellee.
Appellant was charged with breaking and entering a dwelling house with intent to commit a misdemeanor; to-wit, an assault and battery.
The jury returned a verdict of guilty as charged.
The only question presented by this appeal is the sufficiency of the evidence. We have carefully considered the entire record and find the evidence sufficiently convincing to sustain the verdict which was also approved by the trial judge.
Of our own motion however we will consider the legality of the sentence because we will not approve a judgment which is patently erroneous. As stated above the charge was breaking and entering with intent to commit a misdemeanor. The verdict was regular in that it found guilt as charged. The judgment of conviction is, "You, Edgar Lewis, having been convicted by a jury of the crime of burglary, the court adjudges you to be guilty."
No doubt the busy trial judge was misled by the style of "burglary" upon the information. It was misleading but wholly superfluous inasmuch as the charging part of the information was proper.
It follows that the verdict is good and the judgment is erroneous. The judgment is reversed and the cause remanded for a proper adjudication of guilt and sentence.
Reversed.
BUFORD, C. J., TERRELL and CHAPMAN, JJ., concur.