126 Ala. 87 | Ala. | 1899
Appellee,. John Roberts, was-convicted on an indictment.charging the offense of robbery in the Tusca’oosa county court, and sentenced to-imprisonment in the penitentiary. Pie appealed to this court, and on 3Iay 11, 1900, his appeal was dismissed-on the ground that the record certified to us showed-that A. S. VandeGraaff, a person other than the regular judge of the county court, presided at the trial as special judge, and did not show affirmatively that said VandeGraaff had been agreed upon by the solicitor- and the defendant, or had been appointed by the clerk of said court to act as special judge on the trial; the theory being that the judgment in -the absence of such showing was void and would not support an appeal. Upon the-rendition of the judgment of dismissal by this court,., the defendant' was delivered to the officers of the penitentiary and there confined under said judgment and' sentence, lie then applied for and obtained a writ'of habeas corpus returnable before the judge of the city-court of 3fontgomery; and upon the return- thereof and the hearing said judge, following this court, 'held that the judgment of conviction was void, discharged the-petitioner from imprisonment thereunder and remanded him to the custody of the jailer of Tuscaloosa county -for trial on said indictment. From that order-the State prosecutes this appeal, and for the appellant it is insisted that the judgment convicting the -defendant was not void, but that, his appeal to this court having been dismissed, and the supersedeas of the sentence-operated thereby having been ended by the dismissal-,.