CANTO v. THE STATE, 15 Ala. App. 480 (1916)

73 So. 826

Canto v. The State. Murder.

Court of Appeals of Alabama.
Decided December 19, 1916.

[EDITORS’ NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.]

APPEAL from Jefferson Criminal Court.

Heard before Hon. Wm. E. FORT.

Joe Canto was convicted of manslaughter in the first degree and he appeals. Affirmed.

M. FRANK CAHALIN, for appellant. W.L. MARTIN, Attorney General, for the State.

EVANS, J.

Appellant was convicted of manslaughter in the first degree and sentenced to a term of 10 years’ imprisonment. The appeal is upon the record proper without a bill of exceptions.

(1) Error cannot be predicated upon the overruling of the motion to quash the indictment; it is a matter of discretion with the trial court whether it will put the defendant to his demurrer or plea in abatement, as the case may be. — Amos Smith’s Case, infra, 73 So. 824; Bryant’s Case, 79 Ala. 724 Mosely’s Case, 1 Ala. App. 108, 56 So. 35; Josiah Clark’s Case, 14 Ala. App. 633, 72 So. 291.

(2) The statute requires the mero motu charge given by the trial court to be set out in the transcript. — Acts 1915, p. 815. This does not appear. In the absence of the mero motu. charge, and of a bill of exceptions, this court cannot review the written requests to charge refused to appellant. —Mitchell’s Case, 14 Ala. App. 104, 71 So. 982; Clay’s Case, 14 Ala. App. 665, 71 So. 982; Clark’s Case, 14 Ala. App. 633, 72 So. 291; Dorough’s Case, 14 Ala. App. 110, 72 So. 208.

Page 481

Aside from these questions, the record proper discloses no error. The judgment entry and proceedings had in support thereof appear in all things to be regular, and the judgment below is accordingly affirmed.

Affirmed.