Collins v. State

Alabama Court of Appeals

Collins v. State

98 So. 489, 19 Ala. App. 518, 1923 Ala. App. LEXIS 304

CourtAlabama Court of Appeals

DecidedDecember 18, 1923

Docket6 Div. 342.

StatusPublished

This text of 98 So. 489 (Collins v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Collins v. State, 98 So. 489, 19 Ala. App. 518, 1923 Ala. App. LEXIS 304 (Ala. Ct. App. 1923).

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Opinion

FOSTER, J.

The'prosecution was commenced in the Jefferson county court of misdemeanors. . Judgment of conviction was rendered in the county court on January 30, 1923. The defendant was allowed 5 days in which to appeal to the circuit court. Local Acts 1919, p. 121, § 30. On February 3d the defendant gave notice of appeal. On February 7th a certified transcript of the proceedings in the county 'court was filed with the clerk of the circuit court. The appeal was taken on'February 3d. The demand for a jury was made on March 8th, more than 30 days thereafter, and came too late. Acts 1915, p. 939, § 2. -

The cause was tried in the circuit court on the original affidavit m'ade in the county court. No complaint or information was filed by the solicitor, as required by section 6730, Code 1907. There is nothing in the record to show a waiver by the defendant of the filing of such complaint or information.

In the absence of this statement required by statute, or a waiver appearing in the record, it was error to put the defendant to trial on the original affidavit. Moss v. State, 42 Ala. 546; Haynes v. State, 5 Ala. App. 167, 59 South. 325; Kirkhan v. State, 18 Ala. App. 426, 93 South. 56; Peeples v. State, 17 Ala. App. 430, 84 South. 859; Perry v. State, 17 Ala. App. 80, 81 South. 85S; Howard v. State, 17 Ala. App. 9, 81 South. 345 .

For the errors above indicated, the judgment of the circuit court is reversed, and the cause is remanded.

“Reversed and remanded.

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FOSTER, J.

The'prosecution was commenced in the Jefferson county court of misdemeanors. . Judgment of conviction was rendered in the county court on January 30, 1923. The defendant was allowed 5 days in which to appeal to the circuit court. Local Acts 1919, p. 121, § 30. On February 3d the defendant gave notice of appeal. On February 7th a certified transcript of the proceedings in the county 'court was filed with the clerk of the circuit court. The appeal was taken on'February 3d. The demand for a jury was made on March 8th, more than 30 days thereafter, and came too late. Acts 1915, p. 939, § 2. -

The cause was tried in the circuit court on the original affidavit m'ade in the county court. No complaint or information was filed by the solicitor, as required by section 6730, Code 1907. There is nothing in the record to show a waiver by the defendant of the filing of such complaint or information.

In the absence of this statement required by statute, or a waiver appearing in the record, it was error to put the defendant to trial on the original affidavit. Moss v. State, 42 Ala. 546; Haynes v. State, 5 Ala. App. 167, 59 South. 325; Kirkhan v. State, 18 Ala. App. 426, 93 South. 56; Peeples v. State, 17 Ala. App. 430, 84 South. 859; Perry v. State, 17 Ala. App. 80, 81 South. 85S; Howard v. State, 17 Ala. App. 9, 81 South. 345 .

For the errors above indicated, the judgment of the circuit court is reversed, and the cause is remanded.

“Reversed and remanded.

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98 So. 489, 19 Ala. App. 518, 1923 Ala. App. LEXIS 304, Counsel Stack Legal Research, https://law.counselstack.com/opinion/collins-v-state-alactapp-1923.

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