Howard v. State

Decision Date18 March 1919
Docket Number1 Div. 314
Citation81 So. 345,17 Ala.App. 9
PartiesHOWARD v. STATE.
CourtAlabama Court of Appeals

Appeal from Circuit Court, Washington County; Ben D. Turner, Judge.

James M. Howard was convicted of unlawfully entering the lands of another and cutting, girdling, or boxing pine trees for the purpose of obtaining crude turpentine, and he appeals. Reversed and remanded.

Granade & Granade, of Chatom, for appellant.

F. Loyd Tate, Atty. Gen., and Emmett S. Thigpen, Asst. Atty. Gen for the State.

BRICKEN J.

This prosecution originated in the county court, and from a judgment of conviction in that court the defendant appealed to the circuit court, and was there tried and convicted under the original complaint. No brief statement of the cause of complaint was made by the solicitor as required by section 6730 of the Code of 1907, and the record here fails to show a waiver of the required statement. This was error. Moss v State, 42 Ala. 546; Haynes v. State, 5 Ala.App 167, 59 So. 325. The record in the instant case is very similar to the records in the Moss Case and Haynes Case, supra. The judgment entry recites that the defendant was arraigned and pleaded to an indictment, when in fact no indictment had been preferred, and while it is disclosed by the record that the defendant in the county court moved for and was granted an appeal to the circuit court, it nowhere appears that said appeal was ever perfected or how jurisdiction of this cause was ever acquired by the circuit court. Many of the criticisms of the record in the two cases above cited are applicable here and manifest still further the necessity of greater care in the preparation of every record and that the law and rules applicable thereto should be followed.

The defendant was tried and convicted for the offense denounced by section 7837 of the Code of 1907, and it is insisted, among other things, that under all the evidence in the case the defendant was entitled to the general affirmative charge requested by him in writing and refused by the court.

In order to sustain a conviction under section 7837 of the Code it must be shown by the evidence, beyond a reasonable doubt, that the defendant did knowingly and willfully, and without the consent of the owner, enter upon the lands of the person or corporation named in the complaint, or upon the lands of the state, and cut, or girdle, or box pine trees for the purpose of obtaining crude...

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15 cases
  • Young v. City of Hokes Bluff, CR-90-1559
    • United States
    • Alabama Court of Criminal Appeals
    • March 27, 1992
    ...... Rogers v. State, 12 Ala.App. 196, 67 So. 781 (1915); Miles v. State, 94 Ala. 106, 11 So. 403 (1892). There has been no allegation that the appellant failed to ...459, 461 (1936); Borders v. State, 26 Ala.App. 467, 468, 162 So. 136 (1935); Collins v. State, 19 Ala.App. 516, 516-17, 98 So. 488 (1923); Howard v. State, 17 Ala.App. 9, 81 So. 345, 346 (1919). .         The Moss line of cases does not hold that a prosecuting attorney's complaint is a ......
  • Stegall v. State, CR-92-453
    • United States
    • Alabama Court of Criminal Appeals
    • June 18, 1993
    ......State, 28 Ala.App. 194, 195, 180 So. 735, 736 (1938); Ivey v. State, 27 Ala.App. 182, 183, 168 So. 459, 461 (1936); Borders v. State, 26 Ala.App. 467, 468, 162 So. 136 (1935); Collins v. State, 19 Ala.App. 516, 516-17, 98 So. 488 (1923); Howard v. State, Ala.App. 9, 81 So. 345, 346 (1919). Page 1008.         "The Moss line of cases does not hold that a prosecuting attorney's complaint is a jurisdictional prerequisite to the circuit court's proceeding on trial de novo. Instead, the line of authority holds that the complaint is a ......
  • Owens v. State
    • United States
    • Alabama Court of Appeals
    • February 12, 1924
    ...... complaint by the solicitor constitutes reversible error. Moss v. State, 42 Ala. 546; Haynes v. State, 5. Ala. App. 167, 59 So. 325; Kirkham v. State, 18. Ala. App. 426, 93 So. 56; Peeples v. State, 17 Ala. App. 430, 84 So. 859; Perry v. State, 17 Ala. App. 80, 81 So. 858; Howard v. State, 17 Ala. App. 9, 81. So. 345; Collins v. State (Ala. App.) 98 So. 488. . . It. appears from the record here that the defendant was put to. trial in the circuit court upon the original affidavit or. complaint in the Jefferson county court of misdemeanors, and. no complaint ......
  • Latikos v. State
    • United States
    • Alabama Court of Appeals
    • February 1, 1921
    ...... how the circuit court of Mobile county, the judgment from. which this appeal is taken, acquired jurisdiction of this. cause. It is necessary that this should affirmatively appear. by the record. Moss v. State, 42 Ala. 546;. Haynes v. State, 5 Ala.App. 167, 59 So. 325;. Howard v. State, 81 So. 345; Perry v. State, 81 So. 858; Peeples v. State, 84 So. 859. . . On the. trial of this defendant in the circuit court it appears that. the state relied principally upon the testimony of the. witness Clarence Leland, who testified, among other things,. that he ......
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