JERNIGAN v. STATE, 36 Ala. App. 378 (1952)

56 So.2d 387

JERNIGAN v. STATE.

3 Div. 942.Court of Appeals of Alabama.
January 15, 1952.

Appeal from the Circuit Court, Escambia County, Hare, J.

No attorney marked for appellant.

Si Garrett, Atty. Gen., Robt. Straub, Asst. Atty. Gen., and Robt. P. Bradley, Montgomery, of Counsel, for the State.

CARR, Presiding Judge.

The accused was convicted of driving a truck in excess of the speed limitation under the provisions of Title 36, Sec. 5, Code 1940.

During the progress of the trial no objections were interposed to the introduction of the evidence; neither did the defendant request any written charges.

As we have often declared, our review is confined to questions raised at nisi prius so far as concerns the proceedings in the main trial. Eatman v. State, 30 Ala. App. 312, 5 So.2d 119; Vandiver v. State, 30 Ala. App. 106, 1 So.2d 314.

The trial judge overruled appellant’s motion for a new trial.

In brief the assistant attorney general insists that the motion was not filed within the time required by law, and on this account the judgment of the lower court thereon should not be reviewed by us.

We will not declare a decision on this position.

The highway patrolman testified that the defendant was driving a truck at a speed of between 55 and 60 miles per hour. The accused did not deny on the trial that the truck was traveling at this speed. He claimed that his brother was driving the vehicle.

In this state of the record relating to the evidence, we are not authorized to disturb the judgment of the trial judge in his action in overruling the motion.

In attempting to fix the sentence of the court the judgment entry recites: “Defendant having failed to pay fine and costs is sentenced to hard labor for 10 days to pay the fine and __________ days at 75¢ per day to pay the costs.”

This incomplete judgment entry necessitates a remandment of the cause for proper sentence. Title 15, Sec. 342, Code 1940; Nipper v. State, 33 Ala. App. 280, 32 So.2d 783.

It is ordered that the judgment below be affirmed and the cause remanded for proper sentence.

Affirmed. Remanded for proper sentence.

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