The opinion
On Rehearing.
Appellant’s brief in support of application for rehearing urges that the judgment of conviction is fatally defective because it fails to show defendant entered a plea to the indictment, or that, defendant *70 standing mute, the court caused a plea of not guilty to be entered for him. This question is argued for the first time in any of the proceedings in this case.
The Attorney General thereupon filed a motion for permission to file a motion in the Circuit Court of Chilton County, Alabama, for the purpose of correcting nunc pro tunc the said judgment or minute entry. It is averred that the judgment or minute entry appearing in the record is a true and correct copy of the judgment entry as it appears in the minute book of the Circuit Court of Chilton County, and that a writ of certiorari issued out of the Court of Appeals will not, in and of itself, be sufficient to correct said judgment or minute entry.
A hearing on said motion has been duly held.
This cause was argued orally and submitted in this court on May 24, 1951.
The case of Wyatt v. State, 36 Ala.App. 125 , 57 So.2d 350 , was submitted a short time previously. Since several important questions of law were common to both cases, decision in the Huddleston case was deferred pending determination of these questions in the Wyatt case by this court and by the Supreme Court on certiorari, 257 Ala. 90 , 57 So.2d 366 .
We rendered an opinion affirming the lower court on August 12, 1952.
After a full and careful consideration by the court, sitting en banc, of the respective contentions of appellant and the State, we have reached the conclusion that the motion of the Attorney General should be denied.
The Attorney General admits that if we should grant the motion it would necessitate (1) withdrawing the opinion heretofore rendered by this court; (2) setting aside the submission of the cause; (3) granting permission to the State to file a motion in the Circuit Court of Chilton County for the purpose of correcting nunc pro tunc the judgment or minute entry; (4) the issuance of a writ of certiorari to the clerk of said court to certify to this court the true and correct copy of the judgment entry after the proceedings to correct the judgment have been completed, followed by a resubmission of the cause, etc.
We are unwilling to establish such precedent, after a lapse of so long a time and where the above indicated proceedings are necessary, after a ruling has been made in this court and an opinion rendered.
Defendant’s contention that there was no plea entered and no issue joined, is well taken.
The judgment entry, immediately following the overruling of the demurrer to the indictment recites: “Thereupon, on March 29, 1950; a trial is had.”
“It is well settled that the judgment of conviction in a criminal case must affirmatively show that the defendant pleaded to the indictment, or that, standing mute, the court caused the plea of not guilty to be entered for him.” Bray v. State, 16 Ala.App. 433 , 78 So. 463 ; Tit. 15, Sec. 276, Code 1940; Jackson v. State, 91 Ala. 55 , 8 So. 773 ; Sexton v. State, 29 Ala.App. 336 , 196 So. 742 ; certiorari denied 239 Ala. 662 , 196 So. 746 .
Motion denied. Application for rehearing granted. Opinion corrected. Reversed and remanded.