Fuller v. State

152 So. 2d 696 | Ala. Ct. App. | 1963

This appellant has been convicted of robbery and sentenced to the penitentiary for a term of twenty years. In the trial court he filed a motion for leave to prosecute an appeal in forma pauperis and requesting that he be furnished with a free transcript of the evidence.

The trial judge declined to rule on the motion because it was "insufficient and incomplete."

In Sanders v. State, Court of Appeals 152 So.2d 439,^* a free transcript was sought. The Montgomery Circuit Court denied the request because the petition does not comply with law; also that Sanders has no meritorious defense. Judge Cates, speaking for this court said:

"March 18, 1963, a divided court handed down Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899. In view of the possible nugatory effect¹ of this decision upon all or part of our 'Griffin v. Illinois [351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891]' statute (Act No. 62 of Sept. 15, 1961), we remand the cause to the circuit court for further consideration. See Birdsell v. State, 41 Ala. App. 418, 133 So.2d 692.

* * * * * *

Under the above authorities this cause is remanded to the Circuit Court for further consideration.

Remanded.

^* Ante, p. 67.

¹ "Of course, if there are two equally valid constructions of an act, the constitutional one is to be preferred to one clearly contrary to organic law. Here we think doubt should be removed: particularly as to the specification of meritorious errors mentioned in § 7 of Act 62, supra."