Summers v. State , 70 Ala. 16 ( 1881 )

STONE, J.

TJnder the act “ To regulate the trial of misdemeanors in Jackson county,” approved February 9th, 1881 (Pamph. Acts, 232), the judge of the County Court was authorized to hear counsel and decide the present cause without a jury, unless the defendant demanded a jury. The defendant waived his fight of trial by jury, which waiver was entered of record. Connelly v. The State, 60 Ala. 89. Section 7 of the act referred to secures to the defendant, whether tried by a jury or by the court, the right to “ reserve by bill of exceptions any question of law arising in any of the proceedings,” in like manner as provided for in similar cases in the Circuit Court, by sections 4978 to 4992 of the Code of 1876. TJnder this statute, and its proper construction, no question is so presented in the present case as that we can consider it. We have nothing but the evidence, and the judgment of guilty pronounced on that evidence. Such finding on testimony is not revisable, except on principles not presented by this record.—Cawthorn v. The State, 63 Ala. 157; Nooe’s Ex’r v. Garner’s Adm’r, at present term.

But there is another principle which would render it unnecessary that we should, in this case, decide the question raised above. The statute authorized the judge of the 'County Court to try the facts, unless the defendant demanded a j ury. The witness for the prosecution testified in the presence of the court, and the court was called upon to observe his manner, and weigh his testimony. In such case, the rule is, not to reverse the finding of the primary court, unless a presiding judge would set aside a jury’s verdict of guilty, rendered on similar testimony.—Nooe’s Ex’r v. Garner’s Adm’r, at the present term. Applying that rule to this case, we do not hesitate to affirm that no judge at wisi pri/us would feel authorized to set aside a verdict of guilty, rendered on the evidence found in this record.

Affirmed.