Opinion
2 Div. 446.
November 11, 1930.
Appeal from Circuit Court, Marengo County; Benj. F. Elmore, Judge.
Wesley Wilson was convicted of violating an ordinance of the City of Demopolis, and he appeals.
Appeal dismissed.
The judgment entry is as follows:
"This day came the State of Alabama, by its Solicitor W. R. Kimbrough, Esq. and also came the defendant in his own proper person and the defendant being arraigned on a complaint charging him with the offense of violating the prohibition law and for his plea thereto he says that he is not guilty; thereupon came a jury of twelve good and lawful men, to-wit; H. D. Moorer, and eleven others, who being empanelled and sworn according to law, and having heard the evidence and charges of the Court, upon their oaths do say, 'We the jury find the defendant guilty as charged in the complaint and assess a fine of one hundred dollars against him.'
"It is therefore considered and adjudged by the Court that the City of Demopolis have and recover of the said Wesley Wilson the sum of one hundred dollars, together with the costs of this case, the Court adjudging that the defendant is guilty as ascertained by the jury.
"And the defendant failing to pay the fine and costs as herein assessed, or to confess judgment therefor, or to give a stay bond for said fine and costs; It is the judgment and the sentence of the Court that the said defendant, Wesley Wilson, perform hard labor on the Streets of the City of Demopolis for a period of two hundred and six days to pay the fine, and a period of time to pay the costs at the rate of fifty cents per day. Thereupon the Court imposes a sentence to labor on the streets of said City for 90 days as additional punishment."
L. R. Wilson, of Demopolis, for appellant.
The judgment entry is in such form as to leave the appellant in serious doubt as to whether the state of Alabama or the city of Demopolis was prosecuting him. It is vague, uncertain, and indefinite to such an extent as to make it a nullity. Bradley v. State, 69 Ala. 318.
W. F. Herbert, of Demopolis, for appellee.
Counsel discusses the questions raised and treated, but without citation of authorities.
The import of the judgment, from which this appeal was taken, is difficult if not impossible of ascertainment. This seems to be conceded by the respective parties, but we are asked by appellee to regard the numerous discrepancies, irregularities, and uncertainties as "typographical" errors, and order an affirmance. To accord to this insistence would require the exercise, by this court, of a most unusual degree of conjecture, as well as stretch of imagination, the extent of which we think is beyond our power of accomplishment. As we see it, the judgment, by and through which the lower court has spoken, is uncertain, contradictory, inconsistent in its terms, and incapable of proper or safe execution according to the letter of its mandate.
The purported proceedings are quasi criminal and a term of imprisonment or hard labor upon appellant was attempted. The law is, the judgment and sentence of a court in a criminal case, operating to deprive a citizen of liberty, condemning him to involuntary servitude, must be certain and consistent in all its parts; this being an indispensable element of its validity. The purported judgment here, from which this appeal was taken, does not in any manner accord or comply with the rule stated. In it there is manifest confusion as to the parties involved in this proceeding. By the terms of said judgment it is difficult to ascertain whether the prosecution against appellant was by the state of Alabama for the violation of the laws of the state, or whether the city of Demopolis was complainant in the action. We are without authority, as we are requested to do, to remedy the apparent uncertainty and inconsistency. Without reference to extraneous facts it would be impossible so to do by any tribunal. The judgment aforesaid is a nullity and invalid upon its face and as a consequence will not support an appeal which will of necessity have to be dismissed.
The invalidity of the original affidavit, the basis of this prosecution, is here urged. But the questions involved in this connection do not appear to have been raised in the court below, hence are not presented for consideration.
Appeal dismissed.