98 So. 708 | Ala. | 1923
Petition for writ of certiorari by the state, to review the ruling of the Court of Appeals reversing the judgment of conviction in the case of McLosky v. State,
It is not questioned that the record shows the original affidavit and warrant of arrest issued in the county court, and also the appeal bond filed by the defendant reciting his conviction in the county court for the same offense for which he was tried in the circuit court, and that from such conviction an appeal was prosecuted to the circuit court. The bond was in the usual form, and its further recitals need not be here noted.
The appeal to the circuit court was authorized by section 6725 of the Code of 1907; the succeeding section providing that upon such appeal being taken the judge of the county court shall make a copy of the proceedings had in his court, excepting in subpœnas, certify the same as correct, and hand the transcript together with the appeal bond to the clerk of the circuit court.
For the failure of the record to disclose a compliance with these provisions, the Court of Appeals concludes that the circuit court is not shown to have acquired jurisdiction, notwithstanding the original affidavit and warrant and the appeal bond executed by the defendant contained the recitals above noted. The Court of Appeals rests its decision upon the case of Hall v. State (Ala.App.)
We have examined the cases from the Court of Appeals cited in the Hall Case, but it does not appear to our minds that the exact question was there presented, as to the effect of the recitals of the appeal bond, and, indeed, in one of the cases (Courson v. State,
In the case of Lee v. State,
We recognize that the circuit court does not acquire jurisdiction by the execution of the appeal bond, for such bond is not a condition precedent to an appeal (Alford v. State,
We are therefore of the opinion that the reversal of the judgment upon this ground by the Court of Appeals was erroneous. The petition for certiorari will therefore be awarded, and the cause remanded to that court.
Writ granted; reversed and remanded.
All the Justices concur.