Opinion
4 Div. 610.
December 17, 1931. Rehearing Denied January 21, 1932. Rehearing Granted June 16, 1932.
Appeal from Circuit Court, Barbour County; F. W. Hare, Judge.
Guy W. Winn, of Clayton, for appellant.
The court cannot pass sentence of law upon a defendant not present in open court, which fact must affirmatively appear from the recitals of the record.
Thos. E. Knight, Jr., Atty. Gen., and Thos. Seay Lawson, Asst. Atty. Gen., for the State.
The judgment entry sufficiently indicates the presence of defendant at the trial. It was not necessary to affirm his continuous presence at each step in the cause. Snow v. State, 58 Ala. 372; Sudduth v. State; 124 Ala. 32, 27 So. 487; Dix v. State, 147 Ala. 70, 41 So. 924.
The cause was submitted on the record proper. There was no bill of exceptions. The record has been carefully examined, and the judgment entry on the date of the trial, April 24, 1930, is insufficient, in that it fails to disclose the fact that the defendant and his attorney were present at the trial. For this reason the judgment of the circuit court is reversed, and the cause is remanded.
Reversed and remanded.
ANDERSON, C. J., and BROWN and KNIGHT, JJ., concur.
On Rehearing.
The rehearing is granted, judgment of reversal and remandment set aside, and the judgment of the lower court is affirmed on the authority of Vertus Frost v. State, 142 So. 427. See Cosby v. State, 202 Ala. 419, 80 So. 803.
Affirmed.
All the Justices concur.