Roberson v. State

123 Ala. 55

• Court: Supreme Court of Alabama
• Decided: November 15, 1898
• Status: Published

Opinion

DOWDELL, J.

The judgment entry after reciting the verdict of guilty returned by the jury, then proceeds as follows: “On this the 30th day of March, 1899, the defendant being brought into open court and asked by the. court, if he had anything to say why the sentence of the law should not be passed upon him, says nothing. It is therefore considered by the court that the defendant he and he hereby is sentenced to be confined in the State penitentiary,” etc.

It has been decided in several cases by this court, that the language “it is therefore considered by the court,” or “it is adjudged by the court,” or other equivalent words or expressions, followed by the proper sentence, involves a determination by the court of the defendant’s guilt, and therefore, is a sufficient judgment of conviction. Wilkinson v. State, 106 Ala. 23; Wright v. State, 103 Ala. 95; Gray v. State, 55 Ala. 86; Driggers v. State, ante, p. 46. The motion to dismiss the appeal because there is no sufficient judgment of conviction, must be overruled.

There is no evidence in the record that Andy Justice was sworn as a witness in the case, nor that there was any predicate laid for the impeachment of the defendant’s testimony. All that the bill of exceptions contains in this respect, is that, the defendant’s counsel was stopped by the court, on motion of the solicitor, in making such statement in his argument to the jury, and to which ruling of the court the defendant excepted. So far as the record discloses, the motion of the solicitor and the ruling of the court were based upon the fact that the statement of defendant’s counsel was without the evidence in the case. The ruling was free from error.

In criminal (tases the refusal of the court to grant a motion for a new trial, is not revisable on appeal. Curry v. State, 120 Ala. 366.

We find no error in the record, and the judgment of the circuit court is affirmed.