Varner v. State, 4 Div. 469.

• Decision Date: 20 December 1938
• Docket Number: 4 Div. 469.
• Citation: 28 Ala.App. 414,185 So. 907
• Parties: VARNER v. STATE.
• Court: Alabama Court of Appeals

185 So. 907

28 Ala.App. 414

VARNER v. STATE.

4 Div. 469.

Court of Appeals of Alabama

December 20, 1938

Rehearing Denied Jan. 17, 1939.

Appeal from Circuit Court, Houston County; D. C. Halstead, Judge.

R. C Varner was convicted in the county court and in the circuit court to which an appeal was taken, for unlawfully possessing prohibited liquor, and he appeals.

Affirmed.

W Perry Calhoun, of Dothan, for appellant.

A. A Carmichael, Atty. Gen., and Keener Baxley, Asst. Atty. Gen., for the State.

SAMFORD Judge.

Prosecution was begun by affidavit and warrant returnable to the County Court. The defendant was convicted in the County Court, and from that judgment he appealed to the Circuit Court by giving proper notice and making an appeal bond. There appears in this record a copy of the original affidavit, warrant, search warrant, judgment of the County Court, appearance bond in the County Court, judgment of the County Court, appeal bond from the judgment in the County Court to the Circuit Court, an itemized statement of the cost bill, and a certificate from Roy O. Hill, Clerk of the County Court, to the effect that a true copy of the judgment in the County Court in the case of the State v. R. C. Varner and an itemized cost bill is correct and that he had transmitted with said judgment and cost bill all of the original papers in the case. This return was filed in the Circuit Court as certified by the Clerk of that Court.

The contention is now made that the transmission of the original papers is not a compliance with the requirements of Section 3839 of the Code of 1923.

Since the case of Ex parte State ex rel. Attorney General, McLosky v. State, 210 Ala. 458, 98 So. 708, 709, it has been held "that the recitals of the appeal bond suffice to show the trial and conviction of the defendant in the county court, and his appeal from a conviction to the circuit court, thereby giving to the latter court jurisdiction of the cause." Prior to the decision in the McLosky Case, supra, this court had held differently, and its decision required a strict compliance with Section 3839, supra.

The Circuit Court having acquired jurisdiction of the cause, any omissions or irregularities in the transmission of the record from the County Court to the Circuit Court must be taken advantage of on the trial in the Circuit Court, and cannot be raised for the first time on appeal to this court.

We have examined the...