Opinion
7 Div. 876.
March 18, 1947. Rehearing Denied April 15, 1947.
Appeal from Circuit Court, Etowah County; J. H. Disque, Jr., Judge.
Dewey White was convicted of grand larceny, and he appeals.
Affirmed.
Certiorari denied by Supreme Court in White v. State, 249 Ala. 158, 30 So.2d 468.
A ground of the motion for new trial was that after the jury had returned a verdict of guilty, the trial judge, on February 13, 1946, with defendant and his attorney before him in open court, orally sentenced the defendant to imprisonment in the state penitentiary for ten years; that the purported sentence was oral and the only note or memorandum thereof in writing was an entry made on the trial docket sheet, signed by the trial judge at the time, as follows: "As punishment for his said offense, the defendant is sentenced by the court to imprisonment in the State penitentiary. The defendant in open court giving notice of an appeal, amount of appearance bond fixed at $5000.00, execution of sentence to be suspended, pending appeal."
It is alleged that on March 23, 1946, omission on the trial docket being called to the attention of the judge by the clerk of the court, the judge, without noice to or consent of defendant or his attorney, and without defendant being in open court before him, added to the entry on the trial docket, following the word "penitentiary", the words "for the term of ten years." It is alleged that prior to March 23, 1946, there was no valid, legal sentence pronounced upon defendant from which he could take an appeal, the same being incomplete and invalid, and the minutes of the court not having been written or completed by the clerk.
Robinson Parris, of Gadsden, for appellant.
An indictment for larceny should describe the property with such certainty as will enable the jury to decide whether what is proved to be stolen is the very same as that upon which the indictment is founded, to show to the court that it was the subject matter of the offense charged, and to enable defendant to plead his acquittal or conviction to a subsequent indictment relating to the same property. Smith v. State, 30 Ala. App. 158, 2 So.2d 341; Carroll v. State, 28 Ala. App. 516, 189 So. 219. Judgments of courts of record can exist only in the records of the court. They cannot exist in parol or be proved by parol evidence. Parol is inadmissible even on motion to enter judgment nunc pro tunc. Stewart's Adm'r v. Stewart's Heirs, 31 Ala. 207. The court had lost its power and authority over the attempted judgment and had no power to correct the bench notes by adding thereto the length of sentence imposed and which had been previously omitted. In re Newton, 94 Ala. 431, 10 So. 549; Mt. Vernon-Woodberry Mills v. Union Springs Guano Co., 229 Ala. 91, 155 So. 716.
A. A. Carmichael, Atty. Gen., and Bernard F. Sykes, Asst. Atty. Gen., for the State.
The indictment contained an adequate description of the property. Code 1940, Tit. 15, § 232; 36 C.J. 815, 821; Pfister v. State, 84 Ala. 432, 4 So. 395; Ward v. State, 19 Ala. App. 398, 98 So. 208. Refusal of charges covered by charges given is not error. There was no error in overruling the motion for new trial, there being no evidence in support of the same. The judgment entry recites that defendant was, on February 13, 1946, sentenced to ten years in the penitentiary, and there is no evidence in the record contradicting this recital. Naugher v. State, 241 Ala. 91, 1 So.2d 294; Hart v. State, 28 Ala. App. 545, 190 So. 95; Id., 238 Ala. 188, 190 So. 98.
The evidence in this case, as adduced in the court below, is without dispute or conflict. The defendant offered no testimony.
The evidence for the State tended to show conclusively, under the required rule, that the defendant committed the crime charged in the indictment.
The insistence that the corpus delicti was not sufficiently proven cannot be sustained. The trial court properly so held, and the record shows, the evidence as to this was ample in every respect.
The indictment contained two counts. The verdict of the jury finding the defendant guilty was referable to the first count, which was in words and figures as follows: "The Grand Jury of said County charges that before the finding of this indictment Dewey White, whose name to the Grand Jury is otherwise unknown than as stated, feloniously took and carried away one gray Griffon suit of men's clothes of the value of Twenty five Dollars and Twenty five Cents ($25.25), the personal property of Ike Saks Clothing Company, a corporation, a further and better description of said property being to the Grand Jury unknown, contrary to law."
Demurrer to the indictment was properly overrruled; it was proper in form and substance, it was also in the form prescribed in the Code 1940, Title 15, Section 259, form 66. Furthermore, said indictment was in strict compliance with Title 15, Section 232, Code of Alabama 1940, which section reads as follows: "§ 232. Statement of offense. — The indictment must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment; and in no case are the words 'force of arms' or 'contrary to the form of the statute' necessary."
Earnest counsel for appellant insists the court erred in refusing to defendant written charges (A) and (C), but no error appears in this connection as these two charges were fairly and substantially covered by written charge 13 "given" by the court as requested by defendant.
The judgment of conviction, as appears of record, meets every requirement of law and is regular in every respect. This judgment cannot be impeached in the manner attempted in the motion for a new trial, in support of which no evidence was introduced.
There are other insistences of error, all of which we have carefully considered but find no merit in any of them.
The trial court delivered a full, able and comprehensive oral charge to the jury that fairly covered every phase of the law involved in this case. It is clearly apparent the able jurist who tried this case was fair and impartial throughout the entire trial. Finding no reversible error in any of the rulings of the court, it follows that the judgment of conviction from which this appeal was taken is due to be affirmed. It is so ordered.
Affirmed.