Opinion
4 Div. 945.
February 21, 1933.
Appeal from Circuit Court, Covington County; E. S. Thigpen, Judge.
Bessie Mitchem, alias Meecham, alias Batson, was convicted of miscegenation, and she appeals.
Affirmed.
E. O. Baldwin, of Andalusia, for appellant.
In a prosecution for miscegenation, a verdict of guilty against one defendant cannot be sustained where the jury makes no finding as to the codefendant. Reed v. State, 20 Ala. App. 496, 103 So. 97. In case of a felony, the prisoner must be personally present when the jury returns its verdict, and, to support a conviction, the record must affirmatively declare his presence. Wells v. State, 147 Ala. 140, 41 So. 630; Cook v. State, 60 Ala. 39, 31 Am. Rep. 31.
Thos. E. Knight, Jr., Atty. Gen., and Jas. L. Screws, Asst. Atty. Gen., for the State.
The demurrers to the indictment were properly overruled as the indictment is in Code form. Code 1923, § 4527; Williams v. State, 23 Ala. App. 365, 125 So. 690. The judgment entry affirmatively shows the presence of the accused throughout the proceedings. At any rate, same may be inferred. Frost v. State, 225 Ala. 232, 142 So. 427. In the present record no showing is made as to the disposition of the case against the codefendant. The appellate court may as well presume that he was properly tried and convicted as that he was acquitted. The case of Reed v. State is not apt. The party claiming error must affirmatively show it. Ferguson v. State, 24 Ala. App. 491, 137 So. 315; State v. Ham, 24 Ala. App. 147, 133 So. 60.
Appellant was convicted of the offense of miscegenation. Alabama Code of 1928 (Michie) § 5001. The appeal is submitted here on the record, proper, without bill of exceptions.
The indictment was in Code form, and therefore the demurrers to same were properly overruled. Code, supra, section 4527; Williams v. State, 23 Ala. App. 365, 125 So. 690.
It is sufficiently apparent that appellant was personally present in court during all stages of her arraignment, trial, conviction, etc. Frost v. State, 225 Ala. 232, 142 So. 427.
While we have no disposition to depart from our holding in the case of Reed v. State, 20 Ala. App. 496, 103 So. 97, and the holding in other of our cases in line therewith, yet we do not think said holding is opposed, by virtue of the reason underlying it, to an affirmation of the judgment of conviction in the instant case.
Here, so far as we are advised, appellant's co-indictee was regularly convicted, as was she. We would not — in fact, we are not permitted to — merely speculate that he was acquitted, etc. If, indeed, error of the sort influencing our decision in Reed v. State, supra, was committed, it was incumbent upon appellant to afford us opportunity, by way of the necessary information through a bill of exceptions, or otherwise, legally, to so declare. Ferguson v. State, 24 Ala. App. 491, 137 So. 315.
We see nothing irregular, or erroneous, in the indictment, trial, etc., of appellant. And the judgment of conviction is affirmed.
Affirmed.