State v. Ivey

11 Ala. 47

• Court: Supreme Court of Alabama
• Decided: January 15, 1847
• Status: Published

Opinion

COLLIER, C. J.

The first section of the tenth chapter of the penal code, [Clay’s Dig. 469, § 1,] enacts that whenever in any criminal case, &c., any point or question shall arise, which in the opinion of the presiding judge is novel and difficult, it shall be his duty, on request, to reserve the same distinctly upon the record for the revision of the Supreme court at its next succeeding term, and the presiding judge shall proceed to render judgment on the conviction ; but the execution of the judgment shall be suspended in cases not capital, or not punished by confinement in the penitentiary, until the next succeeding term of the Circuit court rendering the judgment; and the defendant shall be recognized, &c.; and in capital cases, or in cases punished by confinement in the penitentiary, the execution of the judgment shall be suspended to a time not less than twenty-five and not more than forty days after the commencement of, the next succeeding term of the supreme court.

We think this enactment requires, that the points reserved for revision should be brought before this court at the first term after the trial below, and if the record is not then brought up, the judgment or sentence should be executed in obedience to its directions. This court should not revise and adjudicate the points reserved at any subsequent term, but the convict, if he complains of an error to his prejudice, might perhaps apply for a writ of error, and the appropriate correction be made, and justice administered according to law. In the case at bar the record was not filed until the 17th July, 1846, more than twelve months after it was returnable, and at least that length of time after the sentence should have begun to be executed. We cannot entertain the cause as presented, and it is therefore dismissed.