Cantrell v. State, 6 Div. 345
| Decision Date | 14 March 1968 |
| Docket Number | 6 Div. 345 |
| Citation | 215 So.2d 440,283 Ala. 225 |
| Parties | Kenneth CANTRELL v. STATE of Alabama. |
| Court | Alabama Supreme Court |
Beddow, Embry & Beddow, Birmingham, for appellant.
MacDonald Gallion, Atty. Gen., and Walter S. Turner, Asst. Atty. Gen., for the State.
The record in this case was filed in this court on May 26, 1966. On August 15, 1966, the Attorney General filed a 'Motion to Strike the Transcript of the Record on Appeal, Transcript of the Evidence, and to Dismiss the Appeal.' The motion bears a certificate signed by an Assistant Attorney General to the effect that a copy of the motion was mailed to counsel for appellant on August 15, 1966.
The motion was based on three grounds: (1) For that the transcript of the evidence was not filed with the Circuit Clerk within the time allowed by law; (2) for that the transcript of the record was not filed with the Clerk of this court within the time allowed by law; and (3) for that there is no certified authentication of the record by the Clerk below as required by law.
The cause was 'Argued and Submitted on Motion and on Merits' on December 8, 1966. At the time of submission the Attorney General did not file a brief in support of the motion and appellant did not file a brief in opposition to the motion. Such briefs were, of course, not necessary to a lawful submission.
The writer of this opinion subsequently requested the Attorney General to file a brief in support of the motion. Such a brief was filed on January 26, 1968, and it appears by certificate that a copy of the brief was mailed to counsel for appellant on January 26, 1968.
On March 8, 1968, counsel for appellant filed two motions in this court; one seeks to have us strike the brief filed by the Attorney General on January 26, 1968, the other seeks an order setting aside the submission.
The motion to strike the brief filed by the Attorney General on January 26, 1968, is, of course, denied. That brief was filed at our request. Such a request is not unusual. And, of course, counsel for appellant had the right to file a reply brief. The failure of the Attorney General to file a brief in support of the motion at time of submission did not constitute a waiver of the motion.
The motion to set aside the submission is also denied. Counsel for appellant, according to the certificate attached to the motion, was advised on or about August 15, 1966, that the State through its Attorney General was contending that there were defects in the record which would require a dismissal of the appeal. But apparently no action was taken by counsel for appellant prior to submission to check the record to determine if such defects did, in fact, exist and, if so, to take corrective action if such was available.
The motion to set aside the submission, as we understand it, concedes that the record is defective and contains this statement: 'Knowledge of the imperfection was not known to the appellant until the filing of the supplemental brief by the appellee on to-wit January 26, 1968.'
We cannot accept this statement as justifying an order...
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Cantrell v. State of Ala.
...murder and was sentenced to life imprisonment in November 1965. The events of his merits appeal are described in Cantrell v. State, 283 Ala. 225, 215 So.2d 440 (1968), cert. denied, 394 U.S. 950, 89 S.Ct. 1290, 22 L.Ed.2d 485 (1969). The record was filed in the Alabama Supreme Court on May ......
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Norton v. Norton, 7 Div. 930
...from which the appeal was taken that it is a 'complete' or 'full,' and 'correct' transcript. That court relied upon Cantrell v. State, 283 Ala. 225, 215 So.2d 440; James v. State, 42 Ala.App. 665, 177 So.2d 922; Mid-State Homes, Inc. v. Peoples, 42 Ala.App. 182, 157 So.2d 808; Campbell v. S......
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Cantrell v. State
...of the transcript as required by statute, Code of Alabama 1940, Title 7, Section 767, and Supreme Court Rule 24. See Cantrell v. State, 283 Ala. 225, 215 So.2d 440 (1968). In 1969 the Supreme Court of the United States refused to review the action of the Alabama Supreme Court and denied a p......
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Norton v. Norton, 7 Div. 41
...767, supra, the appeal, on proper motion, will be dismissed. Also see James v. State, 42 Ala.App. 665, 177 So.2d 922. In Cantrell v. State, 283 Ala. 225, 215 So.2d 440, the Supreme Court 'Section 767, Title 7, Code 1940, provides in part that the transcript shall include the clerk's 'certif......