Durrett v. State , 133 Ala. 119 ( 1901 )

DOWDELL, J.

In this case, as in the case of Diggs v. State, 77 Ala. 68, the motionin arrest-of judgment and the ruling -of the court itliereon do not appear otherwise than from the bill of exceptions. A motion in arrest of judgment is based on error of law apparent on the face of the record. The error or defect is one shown in the record proper, — -the record which the law requires to be preserved in permanent form, as, for instance, the judgments of the court. In Diggs v. State, supra, iit-was said: “It ha® been repeatedly held by this court, that it is not the appropriate office of a bill of exceptions to present for revision any matter which otherwise would appear of record. It will not be permitted to assume the office of tlie record, which the law requires the court to keep, where no bill of exceptions is resorted to, and on which it cannot trench. Any matter apparent on the record, as a defect in the indictment, sustaining a demurrer to any plea of the -defendant, or overruling a motion in arrest of judgment, must be presented for revision by the record, without ¡the aid of a bill of exceptions-;” citing Ex parte Knight, 61 Ala. 482; Petty v. Dill, 53 Ala. 641. See also Thomas v. State, 94 Ala. 75.

The verdict.-of the jury read as follows: “We the juror find the defendant guilty of murder in the first degree, and -shall suffer death.” While the verdict was not in proper form, yet it was -sufficient to support the judgment of the court. — Noles v. State, 24 Ala. 672; Noles v. State, 26 Ala. 31; Harrall v. State, 26 Ala. 52; Robinson v. State, 54 Ala. 86.

After issue joined on the plea of not guilty and the evidence for the State and defendant had closed, the defendant entered into an agreement with the solicitor for the State, to withdraw his plea of not guilty -and enter a plea of guilty, and for the solicitor to state to the jury that the State would be satisfied with a -sentence to life imprisonment as a punishment. This agreement was carried out by the solicitor, but the jury -declined to carry it ouit, and by their- verdict imposed the death penalty. It was the province and duty of the jury under the law to fix the punishment, and the agreement of the solicitor could be nothing more than a recommendation to the jury. In no sense, under the law, was it binding-on them.

Ruling on motion for new trial in a criminal case is not revisable on appeal.

We find no error in the record, and the judgment must be affirmed.