Swain v. State
| Decision Date | 28 November 1912 |
| Parties | SWAIN v. STATE. |
| Court | Alabama Court of Appeals |
Rehearing Denied Jan. 13, 1913.
Appeal from Law and Equity Court, Walker County; T. L. Sowell Judge.
John Swain was convicted of murder in the second degree, and his appeal from the conviction dismissed on motion of the Attorney General. On application for rehearing. Application overruled.
Acuff & Finch, for appellant.
R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.
The appeal in this case was dismissed on motion of the appellee the state of Alabama, acting through its duly constituted officer for that purpose, the Attorney General. The motion was based on the ground that the appellant had failed to file the transcript in time, and had not taken any steps looking to a prosecution of the appeal in this court during the period the appeal was returnable here. The appellant has filed an application for rehearing, insisting that the order of dismissal entered on the Attorney General's motion was improperly made.
The transcript in this case was filed here for the first time on November 23, 1912, during the present November term, 1912, of the court, that commenced on the 11th day of November, 1912; and the record shows that the appeal in this case was taken on April 27, 1912. The case was returnable under the statute (Code, § 2870) to the previous term of this court that adjourned, by operation of law, on the last day of June, 1912 (act approved April 18, 1911 [Laws 1911, p. 450] § 5, 1 Ala. App. 10, 11). No transcript or certificate of appeal having been filed, or other method pursued of docketing the case or prosecuting the appeal, in this court during the term to which the appeal was returnable, legal cause for a discontinuance had occurred; and, on the timely motion of the Attorney General, duly made, to dismiss the appeal because of this discontinuance, the motion was necessarily granted, and an order to that effect followed Winthrow & Gordon v. Woodward Iron Co., 81 Ala. 100, Sears v. Kirksey,
81 Ala. 98, 2 So. 90; Powell v. State, 59 So. 328; Savannah Williams v. State, 60 So. 416; So. Ry. Co. v. Abraham Bros., 161 Ala. 317, 49 So. 801; Porter v. Martin, 139 Ala. 318, 35 So. 1006.
The appellant contends that the words used in section 2870 of the Code, "unless otherwise provided," have reference to the statutes providing for a preparation of the transcript by the clerk and the time allowed for signing a bill of exceptions, and argues that if section 2870 is not so construed, in connection with these statutes, as to extend the time or term to which the appeal is made returnable, and thereby make the provisions of this statute conform to the time allowed for preparing the transcript and having the bill of exceptions signed, the unsuccessful party, desiring to appeal, will often be prevented from exercising the right of appeal.
Section 2870 provides, when appeals in all cases shall be returnable unless by the special provision of some statute, it is otherwise provided with reference to a particular class of cases, as, for example, was provided by the following section (2871) with respect to appeals from an order appointing, or refusing to appoint, a receiver. This statute, making appeals returnable at a certain time or to a certain term of the appellate court, can neither be abridged nor extended by the statutes making...
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Rivers v. State
... ... least of the first call of the division in which the case ... originated, provided that call was had 20 days or more after ... the appeal was taken, there was a hiatus in the appeal which ... would afford cause for discontinuance. Swain v ... State, 7 Ala.App. 5, 60 So. 961; Williams v ... State, 6 Ala.App. 16, 60 So. 416 ... Our ... Supreme Court, in reviewing on certiorari the last-mentioned ... case, to whose decision we have before alluded (Ex parte ... Williams, 182 Ala. 34, 62 So. 63), impliedly ... ...
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Swain v. State
...and Equity Court, Walker County; T.L. Sowell, Judge. John Swain, alias, etc., was convicted of murder, and he appeals. Affirmed. See, also, 60 So. 961. Acuff & Finch, of Jasper, for R.C. Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State. THOMAS, J. The defendant was ind......
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Campbell v. State
...a term was not docketed before the adjournment of that term; and, if so, the reasoning and authority of the Court of Appeals in Swain v. State, 60 So. 961, would conclusive in favor of the motion to dismiss. Nowhere in our law is there basis for the view that a distinction has existed, or n......