Smith v. State
| Decision Date | 08 June 1920 |
| Docket Number | 7 Div. 641 |
| Citation | Smith v. State, 17 Ala.App. 565, 86 So. 120 (Ala. App. 1920) |
| Parties | SMITH v. STATE. |
| Court | Alabama Court of Appeals |
On Rehearing, June 30, 1920
Appeal from Circuit Court, Talladega county; H.D. Merrill, Judge.
Hugo Smith was convicted of violating the prohibition law, and he appeals. Reversed and remanded.
Knox Acker, Dixon & Sims, of Talladega, for appellant.
J.Q Smith, Atty. Gen., for the State.
After a careful examination of the entire record in this case, the testimony as shown by the bill of exceptions, this court is of the opinion that the trial court erred in refusing to grant to the defendant a new trial as prayed in his motion.
For this error, the judgment is reversed, and the cause is remanded.
Reversed and remanded.
On Rehearing.
On application for rehearing made by the Attorney General, our attention is called to the fact that the motion for a new trial was made in the court below after the cause had been removed from the circuit court by appeal. That court had no jurisdiction to entertain the motion after an appeal had been taken, and therefore of course, no power to grant it. Hudson v. Bauer Grocery Co., 105 Ala. 200, 16 So 693; De Bardeleben v. State, 16 Ala.App. 367, 77 So 979 (opinion).
However, upon a careful consideration of the evidence in this case, we are of the opinion that the affirmative charge should have been given...
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Lewis v. Martin
...Bauer Gro. Co., 105 Ala. 200, 16 So. 693, a motion for new trial was held too late when made after the appeal was taken. Smith v. State, 17 Ala. App. 565, 86 So. 120; Wade v. State, 18 Ala. App. 322, 92 So. 97. See, also, 1 Enc. Dig. of Ala. Rep. p. 397, § 441. The general provisions of the......
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Gandy v. City of Birmingham
... ... on a sworn affidavit; the ordinance was in conflict with the ... general laws of the State in that it had been repealed; and ... the complaint did not aver that whiskey was prohibited ... As we ... understand the law, none of ... 200, 16 So. 693; Lewis v. Martin, 210 Ala ... 401, 98 So. 635; St. Louis & San Francisco Ry. Co. v ... Dennis, 212 Ala. 590, 103 So. 894; Smith v. State, ... 17 Ala.App. 565, 86 So. 120; Wade v. State, 18 ... Ala.App. 322, 92 So. 97 ... We are ... not unmindful of the fact that ... ...
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Thompson v. State
...having waived the right of a trial without a jury. Complaint is made also that we omitted to make reference to the case of Smith v. State, 17 Ala.App. 565, 86 So. 120, appellant's counsel cited in original brief and which he now says 'would seem to be very much on all fours with the case at......
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Dorsey v. State
... ... attention is now called to the fact that the appeal in this ... case was taken on May 29th and the motion for a new trial was ... not made in the circuit court until May 31st, at a time when ... the circuit court had lost jurisdiction to hear and determine ... said motion. Smith v. State, 17 Ala. App. 565, 86 ... So. 120; Wade v. State, 18 Ala. App. 322, 92 So. 97; ... State ex rel. Attorney General, v. Brewer (Ala ... App.) 97 So. 777. Appellee insists, however, that the ... recitals in the judgment entry of an "intention to ... appeal" is not a compliance with the ... ...