Mikell v. State , 242 Ala. 298 ( 1941 )

No question appears to have been raised before the Court of Appeals and none considered by that Court concerning any deficiency of the judgment entry in this cause. There was, therefore, nothing here for this Court to review on petition for certiorari.

We treated the only question presented and concluded there was no occasion for remandment of the cause and of consequence ordered the judgment of the trial court be here affirmed. In view of this situation we have permitted supplemental brief on behalf of defendant, which for the first time presents the matter of the sufficiency of the judgment, so that if the question merited serious consideration, the cause could be remanded to the Court of Appeals to that end.

We have, therefore, carefully reviewed defendant's insistence in this regard. The argument is based upon the theory the judgment of the court is void, or so defective at least as to call for a reversal of the cause in that it fails to show an adjudication of guilt by the court. But we think the judgment is sufficient. That part of the judgment here pertinent reads as follows:

"Thereupon came a jury of good and lawful men, to-wit; J. I. Helms, Foreman and eleven others, who having been duly impanelled and sworn according to law, on their oaths says: 'We the Jury find the defendant guilty as charged and affix the punishment at 10 years in the penitentiary.'

"Thereupon the defendant, being personally present in court, was asked by the Court if he had anything to say why the sentence of the Law should not now be pronounced upon him, and he said nothing.

"It is therefore considered, and adjudged by the Court that the said defendant, John Jolly Mikell, alias, be imprisoned in the penitentiary of this State for a period of 10 years."

True this is not in perfect form, as observed by the Court in Driggers v. State, 123 Ala. 46, 26 So. 512. But our decisions are to the effect that such a judgment, though omitting express language of adjudication of guilt of the defendant, nevertheless sufficiently implies such a judgment of guilt and is a valid judgment of conviction. Ex parte Roberson, 123 Ala. 103,26 So. 645, 82 Am. St. Rep. 107; Driggers v. State, supra; Carmichael v. State, 213 Ala. 264, 104 So. 638.

A comparison of the judgment entries involved in these cases with that here in question, discloses these authorities are directly in point and decisive contrary to defendant's insistence here.

We deem further elaboration unnecessary. The judgment is sufficient. As to the question determined in the original opinion we merely add that we have given it further consideration in the light of brief of counsel but we are not persuaded the original holding was erroneous. It results that the application for rehearing is overruled.

Application for rehearing overruled.