Ellard v. State

Alabama Court of Appeals

Ellard v. State

187 So. 875, 28 Ala. App. 477, 1939 Ala. App. LEXIS 126

CourtAlabama Court of Appeals

DecidedApril 4, 1939

Docket7 Div. 463.

StatusPublished

This text of 187 So. 875 (Ellard v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ellard v. State, 187 So. 875, 28 Ala. App. 477, 1939 Ala. App. LEXIS 126 (Ala. Ct. App. 1939).

Pincite

Opinion

BRICKEN, Presiding Judge.

The prosecution in this case originated in the county court upon affidavit and warrant which charged this appellant with the offense of operating a motor vehicle upon a public highway while under the influence of intoxicating liquor, or a narcotic drug in said county, etc.

The trial in the county court resulted iii his conviction, as charged, and the court assessed a fine against him of $100. Judgment of conviction was formally entered from which an appeal was taken to the circuit court and a jury trial demanded. The proceedings in this connection appear regular in all respects.

In the circuit court the trial was had before a jury, upon a complaint filed by the Solicitor. The jury returned a verdict of guilty as charged in the complaint and assessed a fine of $100.

This appeal is upon the record. There is no bill of exceptions. Upon examination we find, so far as the judgment of conviction is concerned, that the record is regular and without error. To that extent, therefore, said judgment is affirmed.

However, in attempting to pass sentence upon the defendant, it appears that portion of the judgment is defective, erroneous, irregular, vague and uncertain. We quote from the record that portion of the judgment in this connection. It is as follows: “Said fine and costs not being paid nor judgment confessed therefor, it is considered by the Court and it is the judgment and sentence of the Court that the said defendant perform for a term of 65 days in lieu of costs $48.75. It is further ordered that his drivers license be revoked for 5 days and that he be sentenced to 1 day in the County jail.”

This cause is remanded to the lower court in order that the court may pass legal sentence upon the defendant.

Affirmed. Remanded for proper sentence.

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BRICKEN, Presiding Judge.

The prosecution in this case originated in the county court upon affidavit and warrant which charged this appellant with the offense of operating a motor vehicle upon a public highway while under the influence of intoxicating liquor, or a narcotic drug in said county, etc.

The trial in the county court resulted iii his conviction, as charged, and the court assessed a fine against him of $100. Judgment of conviction was formally entered from which an appeal was taken to the circuit court and a jury trial demanded. The proceedings in this connection appear regular in all respects.

In the circuit court the trial was had before a jury, upon a complaint filed by the Solicitor. The jury returned a verdict of guilty as charged in the complaint and assessed a fine of $100.

This appeal is upon the record. There is no bill of exceptions. Upon examination we find, so far as the judgment of conviction is concerned, that the record is regular and without error. To that extent, therefore, said judgment is affirmed.

However, in attempting to pass sentence upon the defendant, it appears that portion of the judgment is defective, erroneous, irregular, vague and uncertain. We quote from the record that portion of the judgment in this connection. It is as follows: “Said fine and costs not being paid nor judgment confessed therefor, it is considered by the Court and it is the judgment and sentence of the Court that the said defendant perform for a term of 65 days in lieu of costs $48.75. It is further ordered that his drivers license be revoked for 5 days and that he be sentenced to 1 day in the County jail.”

This cause is remanded to the lower court in order that the court may pass legal sentence upon the defendant.

Affirmed. Remanded for proper sentence.

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Bluebook (online)

187 So. 875, 28 Ala. App. 477, 1939 Ala. App. LEXIS 126, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ellard-v-state-alactapp-1939.