Ex parte State ex rel. Attorney General

• Decision Date: 13 December 1923
• Docket Number: 7 Div. 436.
• Citation: 98 So. 708,210 Ala. 458
• Parties: EX PARTE STATE EX REL. ATTORNEY GENERAL. v. STATE. MCLOSKY
• Court: Alabama Supreme Court

98 So. 708

210 Ala. 458

EX PARTE STATE EX REL. ATTORNEY GENERAL.

MCLOSKY v. STATE.

7 Div. 436.

Supreme Court of Alabama

December 13, 1923

Certiorari to Court of Appeals.

F. C McLosky was convicted of an offense, and on appeal to the Court of Appeals, the judgment being reversed on rehearing the State of Alabama, on the relation of its Attorney General, petitions for certiorari to the Court of Appeals to review and revise the judgment and decision there rendered in the case styled McLosky v. State, 98 So. 706. Writ awarded; reversed and remanded.

Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for petitioner.

Culli &amp Hunt, of Gadsden, opposed.

GARDNER J.

Petition for writ of certiorari by the state, to review the ruling of the Court of Appeals reversing the judgment of conviction in the case of McLosky v. State, 98 So. 706. Upon original consideration of the cause, the Court of Appeals affirmed the judgment of conviction, but upon application for rehearing reached the conclusion that the judgment must be reversed for the reason there was not sufficient data in the record to show how the circuit court acquired jurisdiction of the cause; the case having first been tried in the county court.

It is not questioned that the record shows the original affidavit and warrant of arrest issued in the county court, and also the appeal bond filed by the defendant reciting his conviction in the county court for the same offense for which he was tried in the circuit court, and that from such conviction an appeal was prosecuted to the circuit court. The bond was in the usual form, and its further recitals need not be here noted.

The appeal to the circuit court was authorized by section 6725 of the Code of 1907; the succeeding section providing that upon such appeal being taken the judge of the county court shall make a copy of the proceedings had in his court, excepting in subp+nas, certify the same as correct, and hand the transcript together with the appeal bond to the clerk of the circuit court.

For the failure of the record to disclose a compliance with these provisions, the Court of Appeals concludes that the circuit court is not shown to have acquired jurisdiction, notwithstanding the original affidavit and warrant and the appeal bond executed by the defendant contained the recitals above noted. The Court of Appeals rests its decision upon the case of Hall v. State (Ala. App.) 95 So. 904. In that case, however, the appeal bond was stricken from the record, and what was said by the court upon the question here involved was therefore unnecessary to the determination of the cause, and therefore dictum.

We have examined the cases from the Court of Appeals cited in the Hall Case, but it does not appear to our minds that the exact question was there presented, as to the effect of the recitals of the appeal bond, and, indeed, in one of the cases (Courson v. State, 18 Ala. App. 538, 93 So. 223) the opinion expressly recites that no appeal bond appears in the...