Opinion
3 Div. 555.
June 7, 1927. Rehearing Denied June 30, 1927.
Appeal from Circuit Court, Conecuh County; John D. Leigh, Judge.
Dan Presley was convicted of murder in the second degree, and he appeals. Reversed and remanded.
The judgment entry recites in part:
"It appearing to the court that the defendant was indicted for murder in the first degree, to which indictment he pleaded not guilty, and the jury trying the defendant returned a verdict against the defendant of murder in the second degree and fixed the punishment at 10 years, the court then and there declared the defendant guilty of murder in the second degree, as charged in the indictment. The court then and there formally sentenced the said defendant to the penitentiary of the state of Alabama for the term of 10 years."
Hybart, Hare Dickey, of Evergreen, and Powell Hamilton, of Greenville, for appellant.
The statement shown by the judgment entry is inoperative as a judgment. Wright v. State, 103 Ala. 95, 15 So. 506; Ala. Nat. Bank v. Hunt, 125 Ala. 512, 28 So. 488; Bolton v. State, 40 So. 409; 16 C. J. 1318; Driggers v. State, 123 Ala. 46, 26 So. 512; Gray v. State, 55 Ala. 86; 8 R. C. L. 230; Wells v. State, 19 Ala. App. 403, 97 So. 681. An arraignment is necessary. Bowen v. State, 98 Ala. 84, 12 So. 808; Jackson v. State, 91 Ala. 55, 8 So. 773, 24 Am. St. Rep. 860; Hamilton v. State, 147 Ala. 110, 41 So. 940; Knight v. State, 147 Ala. 104, 41 So. 911. The record must affirmatively show defendant was present in person during the trial. Graham v. State, 40 Ala. 660; Sylvester v. State, 71 Ala. 17; Dix v. State, 147 Ala. 70, 41 So. 924.
Reported in full in the Southern Reporter; not reported in full in 146 Ala. 691.
Charlie C. McCall, Atty. Gen., and W. M. Rayburn, Asst. Atty. Gen., for the State.
Brief on original hearing did not reach the Reporter.
A judgment, as defined by the text-writers, is: "The law's last word in a judicial controversy." It must be complete and certain in itself, and must appear to be the act and adjudication of a court of competent jurisdiction and not a mere memorandum of the court, usually called "bench notes," or the recitals of the clerk as to what took place on the trial. The rule in this state, requiring all of the formalities incident to judgments at common law, has been somewhat relaxed, but it has always been held in criminal cases that there must be an arraignment and plea, an adjudication by the court as to the issues involved, and a sentence by the court. In the case of Wells v. State, on rehearing, 19 Ala. App. 403, 97 So. 681, many of the decisions of this court and of the Supreme Court bearing on these questions were collated and discussed. There it was pointed out that the recitals of the clerk as to what took place were not adjudications by the court. What purports to be the "judgment of the court" in the instant case is not even as definite as the entry in the Wells Case, supra. In this case there is no arraignment of the defendant. It does not appear that the defendant was present throughout the trial. There is no adjudication of guilt and no order of court pronouncing sentence. Sufficient authority for the above holding is Wells Case, supra, and authorities there cited. The judgment appealed from is error.
It will not be necessary to pass upon the sufficiency of the verdict; it being assumed that on another trial a proper verdict will be rendered.
We do not pass upon the numerous refused charges. None of them present any new or novel proposition of law and probably on another trial such of them as assert correct legal propositions will be given if requested, or be covered by the court in his oral charge.
For the errors pointed out, the judgment is reversed, and the cause is remanded.
Reversed and remanded.