Appendix — Cook v. Alabama

Al

THE STATE OF ALABAMA <== JUDICIAL DEPARTMENT

THE ALABAMA COURT OF CRIMINAL APPEALS

OCTOBER TERM, 1981-82

6 Div. 638

Donald Cook

v.

State

Appeal from Walker Circuit Court

BARRON, JUDGE

. Donald Cook was convicted by a Walker

County Circuit Court jury of assault in the third

Weare. The trial court entered a judgment of

conviction and sentenced Cook to 12 months’ hard

labor. Hence this appeal.

Alabama Criminal Court of Appeals' Decision. A2

During the pre-dawn hours of October 4, 1980,

two officers of the Carbon Hill Police Department,

. John Mark Tirey and Larry Cagle, followed appel-

lant's car to his residence. Immediately prior

thereto the officers had stopped appellant, and he

had abruptly left the scene in his vehicle upon

being requested by one of the officers "to step

out of the car." The evidence is conflicting as

to whether the blue light on the officers' patrol

car was operating during the pursuit of appellant

to his residence.

The officers testified that they arrived at

appellant's residence in time to see four people

leave appellant's car and go into the house, and

saw appellant return to the front porch with "a

long gun” in his hand. They further testified that

they heard two shotgun blasts fired from the front

porch. Officer Cagle was hit by one of the shots,

and Officer Tirey fired two shots at appellant, who

* was on the front porch.

Police reinforcements arrived and, by the

use of a loudspeaker system, the occupants of the

residence were told to come out of the house. Three

people, not including appellant, came out of the

Alabama Court of Criminal Appeals’ Decision. A3

house, and a search of the house and the adjoining

area failed to locate appellant.

Later that same morning, "somewhere after

9:00," an arrest warrant was issued for appellant.

Appellant was located at someone else's residence

"in the back bedroom closet" sitting on the floor,

and was arrested.

I

Appellant contends that the State failed to

prove venue and that, therefore, the trial court

erred to reversal in denying appellant's motion for

a directed verdict at the conclusion of the

State's case. We ieagres, finding that venue

was sufficiently established by the testimony of

Officer Tirey in describing appellant's residence

and the incident which occurred there:

"9. Is this particular area

located in Walker County?

"A. Yes sir, it is."

Alabama Court of Criminal Appeals' Decision. A4

If

Next, appellant contends that the trial

court erred in denying his motion for a mistrial

on the grounds that improper impeachment of a de-

fense witness was permitted, over objection, rela-

tive to a prior conviction involving moral turpi-

tude.

Generally, on cross-examining a witness

about a prior conviction, only inquiries about the

designation of the crime, the time and place of con-

viction, and the punishment are proper. Favor v.

State, 389 So. 2d 556 (Ala. Crim. App. 1980), and

the authorities therein cited.

A review of the record reveals that two

questions on cross~examination of that nature were

propounded to witness Steve Cook, and

neither question exceeded the permissible limits.

Appellant further complains that the State

improperly used the word "convictions," erroneously

indicating more than one conviction, as follows;

Alabama Court of Criminal Appeals'Decision. AS

"MR. GUSTIN [Prosecutor]: Judge,

I have a right to go into this

man's prior felony convictions

to show the jury how much credit

they can put in his testimony."

The remark occurred in a colloquy among the

trial court, appellant's attorney, and the prosecu-

tor after appellant's objection to one of the

prosecutor's questions, which we have determined

was within the permissible limits.

Immediately after the prosecutor's remark,

appellant pointed out the fact of only one con-

viction. In addition, during the colloquy, the

trial court gave the following instruction to the

jury:

“COURT: Ladies and gentlemen of

the jury, the fact that a wit-

ness may have been convicted

of a crime involving moral

turpitude or a felony would

not help us in arriving at a

verdict in this case.

Alabama Court of Criminal Appeals' Decision. A6

"The only conceivable pur-

pose in allowing these facts,

if they be facts, would be as

to their bearing on the wit-

ness's credibility as a wit-

ness and none of the details

of such a transaction are ad-

missible for your considera-

tion whatsoever. If it be a

fact, then the fact iself is

the only thing that would be

appropriate for us to con-

sider under any circumstances

and that's solely for the pur-

pose of whatever bearing you

might think that it would have

on his credibility and you

will not consider anything

else for any other reason.

"All right, gentlemen."

It is clear that the jury understood that

only one prior conviction was involved.

After inquiring of the witness about a

specific prior offense, the prosecutor asked whether

the witness liked "these police involved.”

The witness replied: "No sir, not really. I don't

like coming to court."

It is obvious from the question and from the

answer of the witness that the reference was to the

police involved in the case at bar, and not the

prior conviction case.

Alabama Court of Criminal Appeals' Decision. A7

We hold that the trial court's denial of

the motion for a mistrial was proper.

IIt

Appellant urges that the trial court

erred in the oral jury charge when it charged

that a defense witness had been impeached. The

applicable portion of the charge is:

"If you find from the evi-

dence in this case that any wit-

ness has been impeached or suc-

cessfully impeached, that doesn't

mean that you must necessarily |

disregard that witness's testi-

mony in whole or in part for there

may be other evidence in the case

that tends to support or corrobo-

rate that testimony or some part

of the testimony, but as I have

told you, you will be the sole

and exclusive judges of what you

believe and what you don't believe.

And I charge you in this con-

nection that one of the witnesses

was impeached by proving that he

had been convicted of a crime in-

volving moral turpitude.”

Alabama Court of Criminal Appeal Decision. A8

No objections were made by appellant to the

trial court's oral charge. The record reveals

the following statement by appellant's attorney

immediately following the oral charge:

"No exceptions, Your Honor."

Therefore, nothing is preserved for review on

this issue. Where no exceptions or objections are

made to the trial court's oral charge, this court

cannot review the issue of an asserted error in the

jury instructions. Storie v. State, 390 So. 2d 1179,

writ denied, 390 So. 2d 1184 (Ala. Crim. App. 1980);

Hewitt v. State, 389 So. 2d 157 (Ala. Crim. App.

1980); Langley v. State, 383 So. 2d 868, writ denied,

383 So. 2d 873 (Ala. Crim. App. 1980).

In view of the above, the judgment of the trial

court is due to be affirmed.

AFFIRMED.

All the Judges concur.

= 8 «

THE ALABAMA COURT OF CRIMINAL APPEALS

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: CC 80-392 J

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Cth piv 08 __, WALKER Circuit Court he

DONALD COOK Lf

vs Appellant =

THE STATE 3

Appellee

Dear Sir: This is to advise you that on JUL 27 1982_“PP — | 3

the Court of Criminal Appeals announced decision of: 4 “

afftemanac 9

appeal _dlemissed @

application for rehearing overruled No opinion. 5

ee 9

Yours Ag »

in the above stated cause. MOLLIE JORDAN, CLERK

St ee ee ee

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MAILING ADDRESS: d

MONTOOUERY, ALABAMA 80101 OFFICE OF ene

CLERK OF THE SUPREME COURT -

STATE OF ALABAMA °

MONTGOMERY mh

October 22, 1982 ©

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Re: 81-960 a

Ex Parte: Donald Cook 5

PETITION FOR WRIT OF CERTIORARI TO THE COURT OF ‘CRIMINAL APPEALS

(Re: Donald Cook vs. State of Alabama)

Appellant Appellee

ie You are hereby notified that the following indicated action was taken in the above cause by the Supreme Court 3

ay:

239

Appeal docketed. Future correspondence should refer to the above number.

Court Reporter granted additional time to file reporter's transcript to and including

otv

Clerk/Register granted additional time to file clerk's record/record on appeal to and including

Appell

Appellant(s) granted 7 additional days to file reply briefs to and including

granted 7 additional days to file briefs to and including

—_.- Record on Appeal filed

Appendix Filed

Submitted on Briefs

XXXXXKX Petition for Writ of Certiorari denied. No opinion. SHORES, J. -- TORBERT, C.J., MADDOX, JONES

AND BEATTY, JJ., CONC'R.

Application for rehearing overruled. No opinion written on rehearing.

Permission to file amicus curiae briefs granted

- Brey £ Yoel

Acting Clerk, Supreme Court of Alabama

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tty

Il.

The Court on the question of improper jury instruction

refused to review the Trial Court's assertion that a defense

witness had been impeached. The reason thus stated by the

Court was that no exception had been taken and therefore

there was no error preserved in the record which was sub-

ject to review.

The appellant at this time would cite to the Court

the following section taken from the 1975 Code of Alabama,

Title 12-22-240:

"In all cases appealable to the court of criminal

appeals, the court must consider all questions

apparent on the record or reserved in the circuit

court and must enter such judgement as the law

demands."

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The purpose of this section requiring the appceilate .

oe

courts to consider all questions apparent on the record,

are so that all proceedings as shown by the record are re-

gular, and to affirmatively ascertain that due process of

the law prevails in every case, Smith v. State, 21 Ala.

App. 70, 105 So. 397; James v. State, 28 Ala. App. 225, 181

So. 709,

It is obvious from the forgoing citations that the

Court is under the obligation to rule on all meritorious

questions which are propounded to it. It is the contention

of the appellant that the improper instruction was " ap-

parent on the record" and should be reviewed. The wording

in the statute (must) makes this mandatory. The further

wording, “apparent on the record or reserved in the circuit

11.

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court" tends to define those errors which are reviewable

as all errors which are apparent on the record. The con-

junction "or" rather that "and" does not exclude those

errors which have not been excepted to. This is mandatory

for due process. This section imposes a duty on the Court

to search the record for errors in all criminal cases and

to consider all questions apparent on the record or reserved,

Wallace v. State, 290 Ala. 201, 275 So. 2d 634. A refusal

to address a proper issue properly raised by an appellant

would be a denial of his rights to "due process" under the

Constitution of the United States and the State of Alabama.

In further support of the appellant's contention, the

appellant refers the Court to its decision in Harris v.

State, 371 So. 2d 979 (Ala. Cr. App.). The Court addressing

the same issue under the same statute stated:

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" Although only the issue of the refused charges

was expressly presented on this appeal, it is

our statutory duty to search the record for any

error which was duly preserved at trial. Section

12-22-240, Code of Alabama 1975. Therefore, four

rhe ela raised only at trial have been con-

sidered."

It is the contention of the appellant that the same obligation

is owed to him under the same statute in this case.

The trial attorney for the appellant had properly raised

the question of the impeachment of the witness during the

course of the trial and was further owed the obligation

by the Trial Court to refrain from commenting on the credibility

of his witness in orderto furnish him an impartial jury and

thus "due process".

The appellant contends as in Davis v. State, 20 Ala. App.

463, 103 So, 73, including other citations included in his

| 12.

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— Po rey et wm

original brief, where the trial court has commented on his

evidence to the jury, has been prejudiced.

The appellant distinguishes those cases of Storie, Hewitt,

and Langely as cited in support of the Court's decision

of June 29, 1982. These cases generally involve those charges

which have been refused or those which have not heen addressed

or preserved on the record during the course of the trial.

The appellant's trial attorney had raised the issue (witness

impeachment) during the course of the trial and made motions -

on the record of the fact. The Trial Court was obligated not

to charge the jury that his witness had been impeached. This

was "apparent on the record".

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CONCLUSION

The appellant is of the opinion that his constitutional

rights and due process requirements have been violated due

to the manifest errors which are set out above. He is of the

opinion that he is entitled to a rehearing of the said cause

in the interests of justice and fair play.

¢ 5 Yi

illiam H. Tana co

Attorney for the Appellant

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ISSUES OF LAW

T.

Whether the trial court erred in failing to grant

the defense attorney's motion for failure to prove

venue at the end of the State's case in chief.

Stokes v. State, 373 So. 2d 1211, (Ala. Cr. App.)

Walker V. State, 153 Ala. 31, 45 So. 640

IT.

The trial court improperly admitted evidence in

improper form on the prior conviction of a defense

witness for the purposes of impeachmnet.

Favor v. State, 389% So. 2d 556, (Ala. Cr. App. 1980)

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Texts.

Gamble's - McElroy's Alahama Evidence - Section 145.01(11) >

III.

st

The trial court court erred in charging the jury that

a defense witness had been impeached by evidence of a prior

conviction.

Andrews v. State, 159 Ala. 14, 48 So. 858.

Harris v. State, 371 So. 2d 979, (Ala. Cr. App.).

Pease v. Montgomery, 331 So. 2d 221,

Texts.

Code of Alabama - 1975 - Section 12-22-24n

Gamble's-McFlroy's Alahama Fvidence - Section 469.01

IV,

The Court of Criminal Appeals is denying the appellant

his rights to due process under the Constitutions of the

"nited States and the State of Alahama by refusing to address

his improper jury charge upon appeal.

This issue raised upon appeal.

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ISSUF TIT.

The appellate court contends that hecause no exception

was taken to the trial court's erroneous charge to the jury

that a defense witness had heen impeached, nothing was pre-

served on the record for review.

The appellant contends that the trial court's oral charge

to the jury that his witness had heen impeached was erroneous.

(see apnellate decision for charge). The apnellant cites

the following from Gamble's-“cFlroy's Alabama Fvidence-

Section 469,01 with regard to the impropriety of the charge:

"It is improper for a trial judge to comment

the credipiiity of s witness, In charging the,

jury. it is the duty of the trial Judge not to

ndicate, hy the matter or manner of his charge,

what his own views are as to the effect of the

testimony. eee

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This is also upheld in Pease v. Montgomery, 333 So, 2d 221,

and Andrews v. State, 159 Ala, 14, 48 So, &58,

The appellate court's refusal to address this issue supported

hy its citation of Storie, Hewitt, and Langely (See appellate

decision for cites) are a denial af the appellant's right to

"due process" of the law. These cases involved refused requested

charges on hehalf of the defendants, The instant case involved

a spontaneous declaration on the part of the trial court

without prior initiation, The appellant further contends that

the Court of Criminal Appeals is under an obligation under

Title 12-22-240 of the 1975 Code of Alahama to address this

issue, It states as follows:

"In all cases anpealable to the court of criminal

anneals, the court must consider all questions

apparent on the record or reserved in the court

and must enter such judgement as the law demands."

13,

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The appellate court has further upheld this position in

Harris v. State, 371 So. 2d 979 (Ala. Cr. Apn.). Tn this

case the court admitted that it had a statutory dutv to

examine the entire record and enter such judgement as the

law demanded, It further addressed four noints in the

Harris case that were raised only at trial. The wording of

the statute by ,"apparent on the record or reserved", is

inclusive of this tyne of error. The appellant contends

that the improper jurv charge is reversible error and that

the apnellate court is denying his due process hy failure

to address it,

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TSSUR TV.

The appellant had initially addressed three issues in

his original appeal. The Court of Criminal Appeals has through

its decision of June 29, 1982, raised the following issue.

The appellant contends that the Alahama Court of Criminal

Avpeals is denying his rights to "due process of law"

under the Constitution of the lnited States and the State of

Alahama hy refusing to review the improner jurv charge as

required under statute.

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§ 12-22-240

APPELLATE PROCEEDINGS

Division 7.

Disposition of Appeals.

§ 12-22-240. Consideration of cases by court of criminal appeals generally.

In all cases appealable to the court of criminal appeals, the court must consider

all questions apparent on the record or reserved in the circuit court and must

enter such judgment as the law demands. (Code 1876, § 4990; Code 1886, § 4509;

Code 1896, § 4333; Code 1907, § 6264; Code 1928, § 83258; Code 1940, T. 15, § 329.)

Cross reference. — As to rules of supreme

court relative to error without injury, see

A.R.A.P., Rule 45.

Editor’s note. — The following cases were

decided prior to the promulgation of the

Alabama Rules of Appellate Procedure and the

revisiwn of this section pursuant to

recodification in the 1975 Code.

Purpose of section. — The purpose of this

section requiring appellate courts (now court of

criminal appeals) to consider al! questions

apparent on the record and see that proceedings

as sown by record are regular, is to

affirmatively ascertain that due process of law

prevails in every criminal case. Smith v. State

21 Ala. App. 70, 105 So. 397 (1925); James v.

State, 28 Ala. App. 225, 181 So. 709 (1938).

This provision was inserted to abolish the need

for assigning error to obtain review in the

appeliate court; it does away with the need for

a brief, though not for a lawyer for an indigent.

Echols v. State, 47 Ala. App. 23, 249 So. 2d 639

(1971).

This section is not applicable to reviews by

the supreme court on applications for

certiorari to the court of criminal appeals

(formerly court of appeals). It only applies where

the appeal is direct to the reviewing court.

Walden v. State, 240 Ala. 193, 198 So. 264 (1940);

Gandy v. State, 240 Ala. 202, 198 So. 267 (1940).

See A.R.A.P., Rule 39,

Section has no application to motions for

rehearings. — This section has application to the

consideration of criminal cases on original

submissions, and not to motions for rehearings

in such cases. De Graaf v. State, 34 Ala. App.

137, 37 So. 2d 130 (1948). See A.R.A.P., Rule 49.

Applicability of section to appeals from

prosecutions under municipal ordinances. —

Formerly prosecutions under city ordinances

were quasi criminal, and on appeal w court of

lant resort were subject to rules governing civil

appee's, hence this section did not apply. Castee!

v. City of De-atur, 215 Ala. 4, 109 So. 571 (1926).

“we olso Craig v. City of Birmingham, 14 Ala.

Apo 9, TL Se 983 (1916); Macon v. City of

Anniston, 18 Ala. App. 552, 92 So. 913 (1922);

Childs v. City of Birmingham, 19 Ala. App. 71,

94 So. 790 (1922); Washington v. City of

Tuscaloosa, 19 Ala. App. 228, 96 So. 464 (1923);

Russell v. City of Bessemer, 19 Ala. App. 554,

99 So. 53 (1924); Tharpe v. City of Birmingham,

23 Ala. App. 23, 119 So. 594, cert. denied, 219

Ala. 704, 121 So. 918 (1929); Gentle v. City of

Huntsville, 26 Ala. App. 374, 160 So. 273 (1935);

Swinea v. City of Florence, 28 Ala. App. 332, 183

So. 686 (1938); Arnold v. City of Mobile, 33 Ala.

App. 95, 30 So. 2d 40 (1947); Griffith v. City of

Birmingham, 34 Ala. App. 225, 39 So. 2d 693

(1948), cert. denied, 252 Ala. 129, 39 So. 2d 693

(1949); Lee v. City of Marion, 40 Ala. App. 126,

108 So. 2d 385 (1959); Woods v. City of

Tuscaloosa, 43 Ala. App. 626, 198 So. 2d 306

(1967); Ray v. City of Prichard, 45 Ala. App. 32,

222 So. 2d 345 (1969); Wallis v. City of Jasper,

49 Ala. App. 732, 275 So. 2d 712 (1973). See now

A.R.A.P., Rule 1.

And appeals from orders revoking

probation. — Formerly, appeal from an order

revoking probation was not within the purview

of this section. Sparks v. State, 40 Ala. App. 551,

119 So. 2d 596 (1959). See also Hemphill v. State,

41 Ala. App. 441, 134 So. 2d 442 (1961). See now

A.R.A.P., Rule 1.

This section is the paramount law for review

of appeals. Blakely v. State, 43 Ala. App. 654,

198 So. 2d 803 (1967).

Sufficiency of section as to protection of

constitutional rights. — This section in and of

itself strongly tends to protect all the

titutional rights of an appellant. The

yore court and the court of appeals (now

court of criminal appeals) have through the

years conscientiously met the duty cast upon

them by the requirements of this section,

whether or not counsel appeared for the

appellant and whether or not briefs were filed

in his behalf. Caton v. State, 281 Ala. 446, 205 }

So. 2d 239 (1967).

Under recent federal decisions it is doubtful

that the provisions of this section are now

sufficient to protect the constitutional rights of

an appellant in all cases, and counsel must be

furnished an indigent appellant where the record

is unclear or the errors are hidden. Caton v.

State, 281 Ala. 486, 205 So. 2d 239 (1967).

651

1975-Code of Alahama

§ 12-22-240

With respect to indigent appellants, the

review accorded by this section without counsel

on appeal has been held bad. Echols v. State, 47

Ala. App. 23, 249 So. 2d 689 (1971).

Section makes right of appeal one of

substance. — It has been said that this section,

construed in pari materia with others, makes the

right of appeal in criminal cases one of

substance imposing on the court a duty to search

the record for errors. Robereon v. State, 175 Ala.

15, 57 So. 829 (1912); Howerton v. State, 191 Ala.

13, 67 So. 979 (1915); Bigham v. State, 203 Ala.

162, 82 So. 192 (1919); Stone v. State, 208 Ala.

50, 93 So. 706 (1922); Wesson v. State, 238 Ala.

399, 191 So. 249 (1939); De Graaf v. State, 34 Ala.

App. 137, 37 So 2d 130 (1948), Johnson v. State,

257 Ala. 644, 60 So. 2d 818 (1952); Payne v. State,

261 Ala. 397, 74 So. 2d 630 (1954); Waker v.

State, 265 Ala. 233, 90 So. 2d 221* (1956);

Chappelle v. State, 267 Ala. 37, 99 So. 2d 431

(1957).

While the right to appeal is purely a creatu

of our statutes, the legislature, by adopting the

provisions of this section, clearly indicates the

legislative purpose that such right shall not, in

any criminal case, become a mockery. but that

the right shall be substantial, and that this court

shall see to it that a defendant who has heen

convicted in a criminal case, and who has

reserved a question of law for the consideration

of the court of criminal appeals (formerly court

of appeals), and who prays an appeal, shall be

accorded the privilege of having the legal

questions presented by his record properly

ed upon. Hammonds v. State, 44 Ala. App.

256, 206 So. 2d 924 (1968).

This section affords the minimum scope of

appellate review in criminal appeals. Echols v.

State, 47 Ala. App. 23, 249 So. 2d 639 (1971).

The scope of examination on certiorari or

writ of error is much narrower than is

accorded on appeal. Ex parte Jordan, 41 Ala.

App. 590, 143 So. 2d 670 (1962).

Standards of section and section 12-22-241

compared. — The court in searching the record

wader this section is confined to points on which

rulings adverse to the defendant are had in the

trial court. The plain error doctrine applies to

death penalty cases but not to other convictions.

Stinson v. State, 56 Ala. App. 312, 821 So. 2d 277

(1975).

No Invidious discrimination between

standards of nection and section 12-22-241. —

There is no invidious discrimination between the

standards of appellate review exhibited by

§ 12-22-241 and this nection. Echola v. State, 47

Ala. App. 23, 249 So. 2d 639 (1971).

There ia no line drawn ony rich and poo

under the dichotomy between § 12-22-241 ron

this nection. Echols v. State, 47 Aln. App. 23, 249

So. 2d 639 (1971).

COURTS

A25S

§ 12-22-240

Under this section, the court treats appeals

untinctured by presumptions. Gore v. State, 45

Ala. App. 146, 227 So. 2d 432 (1969).

Court must consider all questions apparent

on record or reserved. — On the gppwoal of a

section has duty

tate, 26 Ala. App. 311, 159 So. a Green

v. State, 27 Ala. App. 209, 170 So. 72 (1936);

Woodham v. State, 28 Ala. App. 62, 178 So. 464

(1938); James v. State, 28 Ala. App. 225, 181 So.

709 (1938); Sasser v. State, 29 Ala. App. 326, 195

So. 564 (1940).

Under this section the appellate court must on

its own motion take cognizance of patent

discrepancies and errors. Hawkins v. State, 20

n said that this section imposes on

the court the duty to search the record for

errors. Hughes v. State, 213 Ala. 555, 105 So. 664

(1925); Wesson v. State, 238 Ala. 399, 191 So. 249

(1939); Hovey v. State, 29 Ala. App. 149, 195 So.

2 (1940).

It is the duty of the appellate court to examine

the record and ascertain its regularity. Green v.

State, 27 Ala. App. 209, 170 So. 72 (1936).

This section requires the court of criminal

appeals (formerly court of appeals) to consider

objections reserved to the court's rulings on the

admission of testimony. Kitchens v. State, 27

Ala. App. 336, 172 So. 297 (1937).

Under this section the court is enjoined to

search the record without presumption either

for or against the prisoner or the prosecution.

Foster v. State, 44 Ala. App. 139, 204 So. 2d 148

(1967).

It is the duty of the appellate court under this

section to review the record and the testimony

-* errors. Elliott v. State, 283 Ala. 67, 214 So.

late court’s duty in a

case to cons all —- apparent on the

record or reserved. Wallace v. State, 290 Ala.

201, 275 So. za6 634 ane

section, the sot be weal to search the record

for error even on a plea of guilty. Martin v.

State, 42 Ala. App. 447, 167 So. 2d 915 (1964). See

alao Mahaley v. State, 89 Ala. App. 472, 108 So.

2d 824 (1958),

“Reserved” in thin section senna that a point

is raised by protecting the record in that the

party appealing properly sought and obtained

from the trial court an adverse ruling. Woods v.

State, 54 Ala. App. 691, 310 So. 2d 91 (1976).

“Reserved” would seem to mean kept, held,

retnined or . Woods v. State, 64 Ala.

App. 591, 310 So, 2d 891 (1975).

Court in aghepeors by rar me pt: n rte

prosecution, the consideration o appeal

the court of criminal appeals (formerly court of

652

1975-Code of Alabama

§ 12-22-240

appeals) is governed by the record. James v.

State, 28 Ala. App. 225, 181 So. 709 (1938). See

A.R.A.P., Rule 10.

As submitted. — The court of criminal appeals

(formerly court of appeals) is governed by the

record as submitted, and where record is found

to be regular in all respects with no

discrepancies noted, it cannot be impeached by

insistence to contrary made for first time in brief

of counsel on appeal. Green v. State, 27 Ala. App.

209, 170 So. 72 (1936). See A.R.A.P., Rules 10 and

11 as to record on appeal and Rules 28, 29 and

30 as to briefs.

Thus the appellate court cannot use

excluded evidence for review under this section.

Ferrell v. State, 41 Ala. App. 659, 148 So. 2d 656

(1963).

No review of questions not properly raised.

— This section does not mean that in a

noncapital case a review will be made of

questions which are not properly raised. Segers

v. State, 283 Ala. 682, 220 So. 2d 848 (1969);

Harnage v. State, 290 Ala. 142, 274 So. 2d 352

(1972).

Effect of omission of exhibits from record.

— The omission of exhibits from a record

precluded review as to the sufficiency of the

evidence. Lindsay v. State, 41 Ala. App. 85, 125

So. 2d 716 (1960), cert. denied, 366 U.S. 933, 81

S. Ct. 1656, 6 L. Ed. 2d 392 (1961). See A.R.A.P.,

Rule 10.

Assignment of errors not required. — This

section renders assignment or joinder of errors

unnecessary in criminal cases. Slaughter v.

State. 21 Ala. App. 211, 106 So. 891 (1926);

Woodham v. State, 28 Ala. App. 62, 178 So. 464

(1938); James v. State, 28 Ala. App. 225, 181 So.

709 (1938). See now A.R.A.P., Rule 20.

In criminal appeals, this section expressly

abolishes assignments of error. Ray v. City of

Prichard, 45 Ala. App. 32, 222 So. 2d 345 (1969).

U } :

- assi t Vv

App.

Perkins v. State, 24 Ala. Aig 138, 131 So. 461

(1930). See also Pate v. State, 27 Ala. App. 319,

173 So. 393 (1936).

But it is permissible to assign errors in a

criminal case, and doing so does not preclude

court, as required by this section, from

considering all questions apparent on the record

or reserved. Slaughter v. State, 21 Ala. App. 211,

106 So. 891 (1926). Layton v. State, 23 Ala. App.

297, 124 So. 406 (1929); Perkins v. State, 24 Ala.

App. 138, 131 So. 461 (1930). See A.R.A.P., Rule

Requirement as to filing of brief by

defendant. — The filing of a brief is not

essential to court’s consideration of an appeal by

a defendant in a criminal case. Higginbotham v.

APPELLATE PROCEEDINGS

nF

A26

§ 12-22-240

State, 262 Ala. 236, 78 So. 2d 637 (1955);

Chappelle v. State, 267 Ala. 37, 99 So. 2d 431

(1957); Phillips v. State, 272 Ala. 216, 130 So. 2d

822 (1961); Adams v. State, 280 Ala. 678, 19% ho

2d 255 (1967); Blakely v. State, 43 Ala. App. 64,

198 So. 2d 803 (1967); Seals v. State, 282 Ala. hrs6,

213 So. 2d 645 (1968). But see A.R.A.P., Rule 31.

Under this section it is unnecessary to file s

brief in a criminal case. Hymes v. State, 209 Ala.

91, 95 So. 383 (1923). See also Bertalsen v. State,

20 Ala. App. 539, 103 So. 480 (1925); Payne v.

State, 261 Ala. 397, 74 So. 2d 630 (1954); Walker

v. State, 265 Ala. 233, 90 So. 2d 221 (1956).

Although no brief has been filed on behalf of

appellant, the court must consider all questions

or reserved by former bi

. French v. State, 28 Ala. App. 147,

¢ 38); Mullins v. State, 28 Ala. App.

282, 183 So. 894 (1938); Hovey v. State, 29 Ala.

App. 149, 195 So. 282 (1940); Gibbs v. State, 33

Ala. App. 374, 34 So. 2d 28 (1948); Johnson v.

State, 257 Ala. 644, 60 So. 2d 818 (1952).

Briefs in criminal appeals are not required.

King v. Ala. App. 319, 189 So. 2d 787

(1966).

Under this section a brief is not mandatory in

a criminal appeal. Cowart v. State, 44 Ala. App.

201, 205 So. 2d 250 (1967).

Effect of failure of attorney general to file

brief. — Even though the attorney general

neglects to file a supplemental! brief under this

section, the court will not ignore its duty to

conduct independent research. In such instance,

this section has turned into another “lazy

lawyer” enactment. Kenny v. State, 51 Ala. App.

35, 282 So. 2d 387, cert. denied, 291 Ala. 786, 282

So. 2d 392 (1973). See A.R.A.P., Rule 31.

Necessity of argument as to question by

defendant. — Under this section, the court could

consider whether overruling petition for

removal to federal court was error, though

appellant did not argue any question connected

with such ruling. Norris v. State, 236 Ala. 281,

182 So. 69 (1938).

If question reserved on appeal from judgment

of conviction is of substance which might have

affected result, court must consider it, though

not argued by appellant or his counsel. Wesson

v. State, 238 Ala. 399, 191 So. 249 (1939); Sanders

v. State, 278 Ala. 453, 179 So. 2d 35 (1965).

Effect of silence of attorney general’s brief

as to particular matter. — Though the silence

of the attorney general's brief might be

construed as confession of error, such a

circumstance cannot under this section be a

decisive factor in reversing. For, by the terms of

this section in criminal appeals, the court must

search the record and enter such judgment as

the law remands. Strickland v. State, 40 Ala.

App. 418, 115 So. 2d 273, cert. denied, 40 Ala.

App. 234, 115 So. 2d 277 (1959).

———__rrl ek eee

1975-Code of Alabama

§ 12-22-240

Though the silence of the attorney general's

brief might be cunstrued as confessions of error,

such a situation cannot under this section be a

decisive factor in reversing. Gautney v. State,

284 Ala. 6, 222 So. 2d 175 (1969).

Striking a record so as to deny altogether a

re in a criminal appeal is to follow a rule

of strict construction contrary he spi

a this section. Howton v. State, 43 Ala. App. 10,

178 S60. 2d 566 (1965).

Under the spirit of this section the court will

not honor requests to strike a pauper's record

where a lower court has ordered a free

transcript. Leonard v. State, 43 Ala. App. 454,

192 So. 2d 461 (1966). See A.R.A.P., Rule 24.

No motion for a new trial is essential or

mandatory under this section. Gibbs v. State,

33 Ala. App. 374, 34 So. 2d 28 (1948).

The entry of a nolle pross is without any

controlling influence on appeal. Owens vy.

State, 45 Ala. App. 227, 228 So. 2d 841 (1969).

Dismissal of appeal for escape pending

appeal. — Dismissal of an appeal for escape of

the appellant pending the appeal should be

treated as a civil contempt rather than as an

abandonment of the appeal. Hence the appeal

would stand dismissed unless before the next

call of the criminal list the appellant had purged

himself of contempt by returning to the custody

of the law. Hammonds v. State, 44 Ala. App. 256,

206 So. 2d 924 (1968).

This section implies an acceptance of the

results of an appellate review, i.e., new trial or

affirmance. However, it does not in any express

term vest in the appellate court the power to

declare the right of appeal forfeit. Hammonds

v. State, 44 Ala. App. 246, 206 So. 2d 924 (1968).

While a record of a trial already had may

compel an appellate finding that there should

have been a judgment discharging the

defendant, nevertheless, when a convicted

defendant appeals claiming insufficiency of the

evidence, he impliedly consents to another trial

if the judgment below is held to be erroneous.

Blackwell v. State, 42 Ala. App. 246, 160 So, 2d

493 (1964).

Under this section the court must enter such

judgment as the law demands. Tool v. State, 21

Ala. App. 233, 107 So. 36 (1926); French v. State,

28 Ala. App. 147, 180 So. 592 (1938).

The genera! rule in reversing judgments of

conviction where trial was had by jury is to

remand case to trial court for further

proceedings, but court of criminal appeals

. (formerly court of appeals) is bi und to con

an quesene as rent on record

ay daa 626

(1940),

seca pe S coors _ th _ he

criminal appeals (formerly court of appeals

the power to discharge the defendant but only

COURTS

a jurisdiction to try and

ju

a: . AZZ

§ 12-22-240

when the ends of justice so demand in the light

of the entire record. Hendricks v. State, 252 Ala.

805, 41 So. 2d 423 (1949).

Discharging a defendant is not predicated on

the withdrawal of the case from the jury, but ix

based on the power lodged in the supreme court

and the court of criminal appeals (formerly court

of appeals) under this section and § 12-22-241,

to be exercised when the ends of justice so

require. Hendricks v. State, 252 Ala. 305, 41 So.

2d 423 (1949).

The power of the court of criminal appeals

(formerly court of appeals) to discharge is

subject to the supervisory powers of the

supreme court and should not be exercised

merely from an insufficiency of the evidence to

sustain the charge, unless the court of criminal

appeals corfiders that further evidence to

sustain the charge could not be adduced on

another trial. Blackwell v. State, 42 Ala. App.

246, 160 So. 2d 499 (1964).

This requirement authorizes an absolute

discharge where on appeal from conviction for

burglary there is not even a scintilla of evidence

to incriminate defendant as to commission of

offense charged against him. Tool v. State, 21

Ala. App. 233, 107 So. 36 (1926).

Where no legal conviction of public

drunkenness could be had on evidence, judgment

of conviction was reversed and judgment

entered discharging defendant from further

custody. Atkins v. State, 27 Ala. App. 212, 169

So. 830 (1936).

Reversal. — A verdict not fixing the degree

of murder as required by § 13-1-73, was fatally

defective, and required reversal and remand

under the instant section. Harden v. State, 211

Ala. 656, 101 So. 442 (1924). See also Roberson

v. State, 175 Ala. 15, 57 So. 829 (1912); Howerton

v. State, 191 Ala. 13, 67 So. 979 (1915).

A conviction in the circuit court for unlawfully

possessing prohibited liquor was required to

reversed on appeal, where record before

Acree | court failed to disclose on what

process, if any, the defendant was tried or the

judgment of conviction was based but where

court had general jurisdiction and defendant

was present in person before court and entered

plea of not guilty, as against contention that

appeal was required to be dismissed. James v.

State, 28 Ala. App. 225, 181 So. 709 (1938), But

see Smith v. State, 21 Ala. App. 70, 105 So. 397

(1925).

Where record submitted on appeal did not

disclose that circuit court by any process ever

ine case,

nt of circuit court could not prevail or be

put in yy ee and effect. James v. State, 28 Ala.

App. 225, 181 So. 709 (1938).

Affirmance. — Where ex»; ination of record

by court discloses no reversibly error, under this

654