Chandler v. State , 12 Ala. App. 287 ( 1915 )

BROWN, J.

The judgment entry in this record shows that during the proceedings and after the pronouncement of judgment on the verdict of the jury the defendant made known to the trial court that he desired to prosecute an appeal from the judgment of conviction pronounced against him, and the court thereupon entered an order suspending execution of the judgment pending the appeal. The record also shows that a bill of exceptions seasonably was presented to and signed by the trial judge, in which numerous questions of law were reserved for decision by this court. The record does not show that the defendant complied with rule 43, Supreme Court Practice (175 Ala. xxi, 61 South, viii), by filing with the clerk of the trial court a truly dated written statement to the effect that he appealed from the judgment of conviction against him. The case on regular call was submitted on the merits, without formal motion to dismiss the appeal.

It is now insisted by the Attorney General that the appeal should be dismissed ex mero motu for failure of the defendant to comply with the rule; his insistence being that a compliance with the rule is jurisdictional, and without it the court’s jurisdiction to review the judgment does not attach.

This case is distinguishable from that of Upshaw v. State, 11 Ala. App. 269, 66 South. 822, in this: There was nothing' in the judgment of the court nor in what was set out in the record as a bill of exceptions in that case showing that any question of law was reserved on the trial for review. In this case, in addition to the recital in the judgment entry, there is a bill of exceptions showing that questions of law arising from rulings of the trial court adverse to the defendant were reserved on the trial by exceptions duly taken. This, under the practice prevailing prior to the adoption of the rule, was all that was required to perfect appeals in criminal cases, and under our statutes conferred jurisdiction upon the appellate court to review the questions so raised.—Bolling v. State, 78 Ala. 469; Ex parte Knight, 61 Ala. 482; Upshaw v. State, 11 Ala. App. 269, 66 South. 822; Campbell v. State, 182 Ala. 18, 62 South. 57.

It is, as insisted in brief by the Attorney General, the duty of attorneys practicing in appellate courts to familiarize themselves with the statutory provisions and rules governing appeals, and substantially comply with appellate procedure as regulated thereby, and appeals are subject to be dismissed on timely motion for failure to comply with the rules of practice.—Powell v. State, 5 Ala. App. 150, 59 South. 328; Lampley v. State, 6 Ala. App. 26, 60 South. 415; Thomas v. Speese, 14 Ariz 556, 132 Pac. 1137; Frierson v. Haley, 1 Ala. App. 576, 55 South. 429; 2 Cyc. 1028.

However, if the case is submitted on the merits without motion to dismiss, mere irregularities arising from failuive to comply with the rules of practice, not affecting the jurisdiction of the court, will be treated as waived.

If no question of law is reserved upon the trial as shown by the record, either in the judgment entries of the trial court or by bill of exceptions seasonably presented and signed, the jurisdiction of the appellate court does not attach, and the appeal will be dismissed ex mero mo tu.—Upshaw v. State, supra.

The evidence tends to show that the state’s witness Bradley gave, the defendant $1.50 for a quart of whisky, that defendant accepted the money and went away and stayed about an hour and a half, and came back and told tbe witness that he would find the whisky in a buggy, and that about that time two other men came up in a buggy, and the witness looked in the buggy and saw a bottle of whisky, and took it out and carried it off with him and drank some of it. The evidence also showed that the defendant was in company with these other men or one of them in the buggy during the hour he was away from Bradley and immediately after he accepted the money from Bradley. There was evidence tending to show that the other two men claimed the liquor, but let Bradley take it away, and that afterwards the money was returned to him. This all occurred at a public gathering in the daytime.

The evidence was sufficient to justify a submission of the case to the jury, and justified the refusal of charges 1, 2, 3, 4, and 5.

It was not error for the court, after giving the defendant’s requested written' charge asserting the proposition that to authorize a conviction the evidence must satisfy the jury of the defendant’s guilt beyond a reasonable -doubt and to a moral certainty,. to explain to the jury that the phrases “beyond a reasonable doubt” and “to a moral certainty” were synonymous terms.

It has always been the rule that every intendment will be indulged in favor of the correctness of the rulings of the trial court, and this imposes on one seeking a review the duty to affirmatively show error.-L. & N. R. R. Co. v. Thomason, 171 Ala. 183, 55 South. 115; Christian v. State, 171 Ala. 52, 54 South. 1001; Baker v. Patterson, 171 Ala. 88, 55 South. 135; Allen v. Harper, 26 Ala. 686. And recently the Supreme Court, by the adoption of rule 45, Supreme Court Practice (175 Ala. xxi, 61 South, ix), has taken a step forward, and requires the appellant to go further, and not only show error, but it must be made to affirmatively appear' after an examination of the entire case that the error complained of has probably injuriously affected the substantial rights of the parties.—Henderson v. Tenn. Coal, Iron & R. R. Co. (Sup.) 67 South. 414.

To properly reserve an exception to the charge of the court given ex mero motu, and present questions as to the correctness of it, it is necessary for the portions of the charge to which such exception is reserved be specifically pointed out before the jury retires. It is as much the purpose of this rule to call the attention of the trial court to- the question, and thus prevent reversible error being committed, as it is to enable the reviewing court to pass upon the question on appeal.—Winter v. State, 132 Ala. 37, 31 South. 717. This rule imposes a duty upon the party seeking review which he must exercise during the trial of his case, and in this it is his constitutional right that he be heard by the trial court.—Const. 1901, § 6; Sellers v. State, 7 Ala. App. 78, 61 South. 485.

The trial court erred in refusing to allow counsel for the defendant to point out the portions of the oral charge to which he desired to reserve exceptions.

We find no other error in the record which would justify the reversal of the judgment.

Reversed and remanded.