Vice v. State , 25 Ala. App. 278 ( 1932 )

The appeal is on the record proper; there being no bill of exceptions.

The appeal in this case is from the judgment of conviction, and not from a judgment denying the motion for a judgment nunc pro tunc. Our consideration of the appeal must end with the judgment of conviction.

We will say, however, that if the defendant desired to test the verdict as rendered by the jury, the proper course was by a motion in arrest of judgment. Where a verdict is, on its face, so defective as a matter of record, that judgment cannot be legally entered thereon, a motion in arrest of judgment is proper. Harris v. State, 53 Fla. 37, 43 So. 311; Edwards v. State, 54 Fla. 40, 45 So. 21.

A motion to amend nunc pro tunc was proper to make the judgment conform to the verdict, but, as has been seen, there is no appeal from the judgment denying this motion, and hence the ruling of the trial judge on the motion is not before us for review.

The trial was had during the regular term of the circuit court of Clarke county, as shown by the transcript of the record, at which term the officers required by law to hold the same were present and officiating. The fact that in the statement of the organization of the court there is a recital that the time for the regular jury term was by order of the presiding judge does not affect the regularity of the term. Code 1923, §§ 3248 and 3249.

There has been forwarded to this court, under rule 24 of the Supreme Court, the original verdict returned by the jury in this case; but, there being no bill of exceptions, and this original verdict nowhere appearing in the record as evidence, it cannot be considered. Supreme Court Rule 24; Southern R. R. Co. v. Leard, 146 Ala. 349, 39 So. 449.

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

Affirmed.