Clark v. State
| Decision Date | 17 June 1913 |
| Citation | 62 So. 987,8 Ala.App. 105 |
| Parties | CLARK v. STATE. |
| Court | Alabama Court of Appeals |
On Application for Rehearing, July 8, 1913
Appeal from Circuit Court, Coffee County; H.A. Pearce, Judge.
Ida Clark was convicted of manslaughter in the first degree, and she appeals. Appeal dismissed, and application for rehearing denied.
The record fails to contain any statement of where or when the court was held or who presided thereat, but begins by setting out the indictment and the pleas interposed by the defendant and then follows the bill of exceptions which states that the cause coming on for hearing at the spring term, 1912, of the circuit court of Coffee county, Ala., on March 27, 1912, the following proceedings were had: "The bill is signed by H.A. Pearce, judge."
H.L. Martin, of Ozark, and J.A. Carnley, of Elba, for appellant.
R.C Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.
Grantham v. State, 3 Ala.App. 168, 57 So. 1025; Thomas v. Daniel, 42 So. 623 [1]; McPherson v. Wiggins, 40 So 961 [2]; Sam Bowen v. State, 62 So 994; 2 Cyc. 1033.
Appeal dismissed.
On Application for Rehearing.
Defendant's counsel make application for rehearing, praying the setting aside of the order of dismissal and the issuance of a writ of certiorari to perfect the record here in the particulars wherein it is defective as pointed out in the foregoing opinion. In support of the application, proper showing is made that the record in the court below is in all respects complete.
If the petition for certiorari had been made before the submission of the case, the defendant would have been entitled to the writ as a matter of right; but having submitted the case on the record in the defective condition that it is, and having by such submission invoked the formal opinion of this court on the question of its sufficiency to support our jurisdiction to hear and determine the appeal on its merits, which resulted in a decision adverse to appellant and in a consequent order of dismissal, it is clear that, if the case is now to be restored to the docket and the writ of certiorari granted, it is to be done purely as a matter of grace on the part of the court and not as a matter of right which the appellant could legally or justly exact.
The law favors only the diligent and forecloses those who fail to seasonably assert their rights. Where, however, life or liberty is involved, we do not feel that a defendant should be made to suffer irreparable injury, on account of the neglect of her counsel, when the case is such that it is within the power of the court, by the extension of its grace to relax the severity and...
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Lipscomb v. State, 7 Div. 208
...for a rehearing, to a certiorari to correct defects in the record. Cochran v. City of Anniston, Ala.App., 68 So. 544; Clark v. State, 8 Ala.App. 105, 62 So. 987. And the Supreme Court, in the case of Stinson v. State, 223 Ala. 327, 135 So. 571, ruled that a motion for certiorari to correct ......
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Rushing v. State, 6 Div. 675
...a judgment and grant a writ of certiorari to correct the record in a meritorious case, even after rendition of opinion (See Clark v. State, 8 Ala.App. 105, 62 So. 987), it would be a futile thing to exercise this grace in this cause even if we were inclined so to The basis of appellant's pe......
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Saylor v. State
...for rehearing, to a certiorari to correct defects in the record. Lipscomb v. State, 37 Ala.App. 379, 68 So.2d 862; Clark v. State, 8 Ala.App. 105, 62 So. 987; Rushing v. State, 40 Ala.App. 361, 113 So.2d Generally, an attempt to correct the record after final disposition comes too late. Lip......
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Hodges v. State, 4 Div. 681
...by bringing up the refused charges with the court's endorsement thereon. The motion for certiorari is filed too late. Clark v. State, 8 Ala.App. 105, 62 So. 987; Cantrell v. State, 283 Ala. 225, 215 So.2d 440; Welch v. State, 271 Ala. 199, 123 So.2d Aside from the fact that the motion comes......