Rushing v. State, 6 Div. 675

CourtAlabama Court of Appeals
Writing for the CourtHARWOOD
Citation40 Ala.App. 361,113 So.2d 527
PartiesStarling Henry RUSHING v. STATE.
Docket Number6 Div. 675
Decision Date16 June 1959

Page 527

113 So.2d 527
40 Ala.App. 361
Starling Henry RUSHING
6 Div. 675.
Court of Appeals of Alabama.
June 16, 1959.
Application for Writ of Certiorari to Correct Record Denied June 30, 1959.

Page 528

[40 Ala.App. 362] St. John & St. John, Cullman, for appellant.

MacDonald Gallion, Atty. Gen., and Paul T. Gish, Jr., Asst. Atty. Gen., for the State.

HARWOOD, Presiding Judge.

This appellant has attempted this appeal from a judgment finding him guilty of manslaughter in the first degree.

The Attorney General has filed a motion to dismiss this appeal because not perfected within the time required by law.

Appellant was tried and adjudged guilty on 2 April 1958.

On 21 April 1958 the appellant filed a motion for a new trial.

No orders pertaining to this motion for a new trial appear in the record until 4 November 1958, when it was overruled.

On that date, 4 November 1958, the appellant gave notice of appeal.

[40 Ala.App. 363] The motion for a new trial filed on 21 April 1958 became discontinued, and functus

Page 529

officio upon the expiration of 30 days from the date of its filing, there being no order keeping it in fieri. The order of 4 November 1958 purporting to overrule the motion for a new trial was therefore a nullity, and of no effect.

An appeal from a conviction of crime in a circuit court must be taken within six months after judgment is rendered, unless of course the court below retains jurisdiction by virtue of a motion for a new trial seasonably filed, and kept alive by timely continuances within each 30 day period, in which event the appeal may be taken from such ruling within six months. See Section 368, Title 15, Code of Alabama 1940; Clark v. State, 38 Ala.App. 480, 87 So.2d 669; McVey v. State, 38 Ala.App. 327, 82 So.2d 926; Relf v. State, 267 Ala. 3, 99 So.2d 216.

The motion for a new trial filed in this case having been discontinued, and thereby rendered functus officio, the date for reckoning the time within which this appeal must have been taken is within six months of the date of judgment of conviction, that is, within six months from 2 April 1958. The attempted appeal was not taken until 4 November 1958. Obviously the effort was too late.

The motion of the Attorney General is well taken, and is hereby granted.

Appeal dismissed.

On Application for Writ of Certiorari to Correct Record.

Appellant has forwarded to this court an application for a rehearing in this case.

At the same time appellant also forwarded an application for a writ of certiorari for the purpose of correcting the record heretofore filed.

The application for rehearing, not being accompanied by a brief, was not received or filed in this court. Supreme Court Rule 34,...

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13 cases
  • Stubbs v. State, 7 Div. 608
    • United States
    • Alabama Court of Criminal Appeals
    • February 24, 1987 file a correct record. Tyus v. State, 347 So.2d 1377 (Ala.Cr.App.1977), cert. denied, 347 So.2d 1384 (Ala.1977); Rushing v. State, 40 Ala.App. 361, 113 So.2d 527 Robinson v. State, 444 So.2d 884, 885 (Ala.1983). However, irrespective of whether the appellant's claim was properly preserve......
  • Cantrell v. State of Ala., 76-2163
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • February 4, 1977
    ...(1967); Henry v. Jackson, 279 Ala. 225, 184 So.2d 133 (1966); Hopkins v. State, 51 Ala.App. 510, 286 So.2d 920 (1973); Rushing v. State, 40 Ala.App. 361, 113 So.2d 527 (1959). See also, Flanagan v. Henderson, supra. The Attorney General had knowledge of the deficiency whether or not his awa......
  • Shadle v. State, 1 Div. 323
    • United States
    • Supreme Court of Alabama
    • January 26, 1967
    ...the charge in the transcript. This may well be true, but the burden to file a correct record is on the appellant. Rushing v. State, 40 Ala.App. 361, 113 So.2d 527. If the transcript is incorrect, the proper mode of correction is by a writ of certiorari, not by an ex parte statement in the b......
  • Tyus v. State, 6 Div. 431
    • United States
    • Alabama Court of Criminal Appeals
    • April 19, 1977
    ...his appeal, Hopkins v. State, 51 Ala.App. 510, 286 So.2d 920 (1973); it is his burden to file a correct record. Rushing v. State, 40 Ala.App. 361, 113 So.2d 527 (1959). An ex parte affidavit of the type submitted here cannot be considered as part of the record upon which the reviewing court......
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