State v. Brewer

• Decision Date: 05 June 1923
• Docket Number: 5 Div. 457.
• Citation: 97 So. 777,19 Ala.App. 330
• Parties: STATE EX REL. ATTY. GEN. v. BREWER, CIRCUIT JUDGE.
• Court: Alabama Court of Appeals

97 So. 777

19 Ala.App. 330

STATE EX REL. ATTY. GEN. v. BREWER, CIRCUIT JUDGE.

5 Div. 457.

Court of Appeals of Alabama

June 5, 1923

Rehearing Denied June 30, 1923.

Original petition by the State of Alabama, on the relation of its Attorney General, for mandamus to Hon. S. L. Brewer, as Judge of the Fifth Judicial Circuit. Writ awarded.

Certiorari denied by Supreme Court in Ex parte Brewer, Judge, 97 So 778.

Harwell G. Davis, Atty. Gen., C. H. Vann, Sol. Fifth circuit, of Roanoke, and F. Loyd Tate, of Wetumpka, for petitioner.

Jas. W Strother, of Dadeville, for respondent.

FOSTER J.

This is a petition for the writ of mandamus to the judge of the Fifth judicial circuit to require him to vacate and annul an order or decree entered by him on November 24, 1922, granting the defendant a new trial in the case of State v. James R Caldwell. On October 6, 1922, the defendant was tried by a jury in the circuit court of Tallapoosa county (Hon. S. L Brewer, judge of the Fifth judicial circuit, presiding), convicted of manslaughter in the first degree, and sentenced to imprisonment in the penitentiary of the state for a term of one year and one day At the time of the rendition of the judgment and the sentence the defendant gave notice of appeal, and an entry of record was made as follows: "From this judgment and sentence of the court defendant appeals."

The record also shows the following entry: "It is further considered and adjudged that the execution of the sentence in this cause be suspended pending said appeal."

On the same day the defendant executed and filed with the circuit clerk an appeal bond in the amount fixed by the trial court, conditioned as required by law, approved by the sheriff, containing, among other recitals: "The said James R. Caldwell has taken an appeal from said judgment of conviction in said cause to the Court of Appeals of Alabama."

On the same day, but after sentence and appeal, the defendant filed a motion for a new trial, and the presiding judge entered on the docket "motion continued"

On November 24, 1922, the presiding judge made the following entry on the motion docket: "On consideration of said motion and the evidence offered the motion is granted."

The answer of respondent shows that the solicitor of the Fifth judicial circuit had notice of the time of the hearing of said motion; that he made no objection to the action of the trial judge in granting said motion, but consented thereto, stating that he thought the defendant should not have been convicted. Counsel for the respondent insists that the state should not now be permitted to repudiate the action of the solicitor, who was representing the state in the circuit court.

On January 23, 1923, a motion was filed in the circuit court by Judge Tate, of counsel for the state, to vacate and annul the order of the trial judge dated November 24, 1922, granting the defendant's motion for a new trial. The court overruled this motion. The state has no appeal from this judgment of the court.

The state, on the relation of the Attorney General, may file petition in this case for writ of mandamus to the judge of the Fifth judicial circuit, requiring him to vacate a void order made on November 24, 1922, and may show that the trial court refused, on motion made January 23, 1923, to set aside such order.

The applicable part of section 7 of the act of the Legislature regulating the manner of taking appeals reads:

"That appeals in criminal cases must be taken at the time of sentence or confession of judgment or within six months thereafter in manner following: (a) An entry of record that defendant appeals from the judgment with or without suspension of judgment, as

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