Ausborn v. State

BOWEN W. SIMMONS, Supernumerary Circuit Judge. Appellant-defendant, an indigent, was indicted for murder in the first degree. The jury returned a verdict finding him guilty of second degree murder; fixing punishment at twenty years imprisonment. Judgment was properly entered and this appeal, in forma pauperis, follows. So far as we observe the rulings of the court made during the progress of the trial were free of error. We pretermit addressing them by authority of T. 13, § 66, Code of Alabama 1940, recompiled 1958. We now consider appellee’s motion to remand the cause with directions. Judgment of conviction entered on Monday, April 12,1976. Thereafter, on May 11, 1976, defendant filed his motion for a new trial. The trial court thereafter on August 6, 1976, heard the motion and granted it on evidence unrelated to the grounds of the motion. We think the order granting the motion is void. The trial court did not keep the motion alive by proper continuance to the day of the hearing as required by law. The motion was discontinued and the court lost jurisdiction. Holcombe v. State, 40 Ala. App. 205, 110 So.2d 342(2); Canady v. State, 41 Ala.App. 170, 125 So.2d 3(1); Harrison v. State, 42 Ala.App. 384, 166 So.2d 429(1); Langford v. State, 44 Ala.App. 75, 202 So.2d 743(1); Ala. Digest Vol. 7, Criminal Law, § 959; T. 13, § 119, Code of Alabama 1940, recompiled 1958. The judgment of conviction is affirmed. Motion to remand is denied. The foregoing opinion was prepared by Honorable BOWEN W. SIMMONS, Supernumerary Circuit Judge, serving as a judge of this Court under § 2 of Act No. 288, Acts of Alabama, July 7, 1945, as amended; his opinion is hereby adopted as that of the Court. AFFIRMED. All the Judges concur.