Spigner v. State , 58 Ala. 421 ( 1877 )

STONE, J.

The charge asked should not have been given. The testimony was not of so weak and indeterminate a character, as to require the court to pronounce its insufficiency as matter of law. Though circumstantial in all that tended to connect the defendant with the offense, it was sufficient to go before the jury to be weighed by them. . In no case should the presiding judge charge on the effect of the evidence, and pronounce it insufficient to support a verdict of guilty, unless, on conviction on such testimony, he would feel it to be his duty to set aside the verdict, as not warranted by the evidence. Such is not the case in this record.

2. There was a rule of the common law, that before sentence, on a conviction of felony, the prisoner must be interrogated by the court, whether he has any thing to say why the sentence of the law should not be pronounced upon him. 1 Bish. Cr. Proc. § 1118. And this court, in Crim v. State, 43 Ala. 53, announced that doctrine. We have no desire to re-examine the question at this time. The main purpose of the inquiry and the rule is, that the prisoner, before sentence, may have afforded to him the opportunity to make any motion which will prevent judgment. The record imforms us that after the coming in of the verdict, the defendant made two motions : one in arrest of judgment, and the other for a new trial, which were severally overruled by the court. These are the motions most usually made after verdict, and we think the recital that these motions were made, proves that the usual question must have been in substance propounded, and that, in fact, the prisoner had accorded to him substantially, all the rule was intended to secure. It would look like child’s play to remand this cause, when the only effect could be to propound the question to the prisoner, receive his answer that he had nothing further to offer, and then pronounce the sentence of the law on. the verdict of guilty heretofore rendered by the jury, and which is free from error. Burch v. State, 55 Ala. 136.

Affirmed.