Opinion
4 Div. 710.
April 14, 1942.
Appeal from Circuit Court, Russell County; J.S. Williams, Judge.
Colorado (alias Carburater) Sanders was convicted of assault with intent to murder, and he appeals.
Reversed and remanded.
A.L. Patterson, of Phenix City, for appellant.
When, without fraud, a motion for a new trial has been submitted on the evidence, in support of said motion, then before the court for final judgment of the court, it is the duty of the court to render an appropriate judgment upon said motion according to the evidence then offered in support thereof and the law pertinent thereto. This duty is mandatory and cannot be qualified by any theory of judicial discretion. Ex parte Alabama Marble Co., 216 Ala. 272, 113 So. 240. When an asserted power is inconsistent with an established right, the power must be denied. Code 1923, § 9490; Code 1940, Tit. 7, § 252. These statutes are applicable to criminal cases. Davis v. State, 20 Ala. App. 463, 103 So. 73. Sufficiency of evidence to sustain a conviction of crime is properly tested by a motion for new trial. Plyler v. State, 21 Ala. App. 320, 108 So. 83; Bufford v. State, 25 Ala. App. 99, 141 So. 359; Roy v. State, 25 Ala. App. 510, 149 So. 713.
Thos. S. Lawson, Atty. Gen., and John O. Harris, Asst. Atty. Gen., for the State.
Allowing the State to reopen the case and introduce additional evidence is a matter within the sound discretion of the court. Jackson v. State, 167 Ala. 44, 52 So. 835. Allowing the State to file counter affidavits after more than 30 days had elapsed was not an abuse of discretion. Knight v. State, 23 Ala. App. 582, 129 So. 478; State v. Hecker, 109 Or. 520, 221 P. 808.
The court has read, studied and considered the record in this case, including the bill of exceptions, while sitting en banc.
We are of the opinion, and hold, the appellant's (defendant's) motion for a new trial should have been granted. Its refusal must cause the judgment of conviction to be reversed.
It would serve no good purpose to go into detail about the reasons for our conclusion. But we will specify two things that have impressed us that the denial of defendant's motion was grounded in error.
In the first place, considering all the testimony in the case, and the circumstances shown thereby, and the inconsistencies shown therein (that is, in the State's testimony — apart from its denial by that of defendant and his witnesses), we are clearly convinced that the verdict of the jury was "wrong and unjust." Cobb v. Malone and Collins, 92 Ala. 630, 9 So. 738, 740.
And in the second place we think the action of the trial court denying appellant's motion should be reversed because of the fact that the State was allowed to file — and, apparently, the court considered — counteraffidavits to those offered by appellant on the hearing of his motion, some weeks after said hearing had been closed, and the motion "taken under advisement" by the court. These counteraffidavits were filed long after said hearing; after the expiration of the time within which they were ordered at said hearing to be allowed; and without any notice to defendant (appellant) of their said filing.
Defendant's (appellant's) motion to strike same was overruled; and, as stated above, they were apparently considered by the court while entering his final order overruling said motion.
We think the action noted was error. See De Bardeleben v. State, 16 Ala. App. 367, 77 So. 979.
Upon the whole record we are clear to the conclusion the judgment of conviction should be reversed, and the cause remanded for another trial.
It is so ordered.
Reversed and remanded.