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Rushing v. State

40 Ala. App. 361 (Ala. Crim. App. 1959)
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Rushing v. State

12 Citing cases

  1. Cantrell v. Alabama

    546 F.2d 652 (5th Cir. 1977)   Cited 20 times
    In Cantrell v. State of Ala., 546 F.2d 652 (5th Cir.), cert. denied, 431 U.S. 959, 97 S.Ct. 2687, 53 L.Ed.2d 278 (1977), appellate counsel did not provide effective representation when the original appeal was dismissed because of counsel's failure to have the trial transcript certified as required by state procedure.

    It is appellant's duty to see that the record on appeal is correct. See, e. g., Orum v. State, 286 Ala. 679, 245 So.2d 831 (1971); Shadle v. State, 280 Ala. 379, 194 So.2d 538 (1967); Henry v. Jackson, 279 Ala. 225, 184 So.2d 133 (1966); Hopkins v. State, 51 Ala. App. 510, 286 So.2d 920 (1973); Rushing v. State, 40 Ala. App. 361, 113 So.2d 527 (1959). See also, Flanagan v. Henderson, supra. The Attorney General had knowledge of the deficiency whether or not his awareness was called to the attention of the defendant's lawyer.

  2. Ex Parte Howell

    974 So. 2d 304 (Ala. 2007)   Cited 9 times
    Holding that a silent record supports a judgment and that it is the duty of the appellant to file a complete and correct record on appeal

    Robertson v. State, 29 Ala.App. 399, 197 So. 73 (1940). It is the appellant's duty to file a correct record. Tyus v. State, 347 So.2d 1377 (Ala.Crim.App. 1977) . . .; Rushing v. State, 40 Ala.App. 361, 113 So.2d 527 (1959)."

  3. Robinson v. State

    444 So. 2d 884 (Ala. 1983)   Cited 63 times
    Holding that a silent record supports the circuit court's judgment

    Robertson v. State, 29 Ala. App. 399, 197 So. 73 (1940). It is the appellant's duty to file a correct record. Tyus v. State, 347 So.2d 1377 (Ala.Cr.App. 1977), cert. den., 347 So.2d 1384 (Ala. 1977); Rushing v. State, 40 Ala. App. 361, 113 So.2d 527 (1959). Thus, the reviewing Court below erred in predicating error on the silent record.

  4. Shadle v. State

    280 Ala. 379 (Ala. 1967)   Cited 131 times
    In Shadle v. State, 280 Ala. 379, 194 So.2d 538, the court said that the granting of a mistrial is within the sound discretion of the trial court, for he, being present, is in a much better position to determine what effect, if any, some occurrence may have had upon the jury's ability to decide the defendant's fate fairly and justly.

    This may well be true, but the burden to file a correct record is on the appellant. Rushing v. State, 40 Ala. App. 361, 113 So.2d 527. If the transcript is incorrect, the proper mode of correction is by a writ of certiorari, not by an ex parte statement in the brief of counsel. Morris v. State, 268 Ala. 60, 104 So.2d 810; Cash v. Usrey, 278 Ala. 313, 178 So.2d 91; Code 1940, Title 7, § 827(1), 827(4).

  5. Ex Parte Pannell

    174 So. 2d 789 (Ala. 1965)

    An appeal from a conviction of crime in a circuit court must be taken within six months after judgment is rendered, unless of course the court below retains jurisdiction by virtue of a motion for a new trial seasonably filed and kept alive by timely continuances, in which event the appeal may be taken within six months of the ruling on the motion for a new trial. Rushing v. State, 40 Ala. App. 361, 113 So.2d 527; Relf v. State, 267 Ala. 3, 99 So.2d 216. The papers were filed in this court by Pannell rather than in the circuit court, where they should have been filed.

  6. Welch v. State

    123 So. 2d 205 (Ala. 1960)   Cited 9 times

    " Bowlin v. Bowlin, 267 Ala. 655, 656, 104 So.2d 630, 631. See also: Rushing v. State, 40 Ala. App. 361, 113 So.2d 527. Appellant's petition for certiorari to perfect the record must be denied because he did not pursue the remedy provided by Rule 18 before submission.

  7. White v. State

    832 So. 2d 676 (Ala. Crim. App. 2001)

    Robertson v. State, 29 Ala. App. 399, 197 So. 73 (1940). It is the appellant's duty to file a correct record. Tyus v. State, 347 So.2d 1377 (Ala.Crim.App. 1977), cert. den., 347 So.2d 1384 (Ala. 1977); Rushing v. State, 40 Ala. App. 361, 113 So.2d 527 (1959)."

  8. Gradford v. City of Huntsville

    557 So. 2d 1330 (Ala. Crim. App. 1990)   Cited 3 times

    Robertson v. State, 29 Ala. App. 399, 197 So. 73 (1940). It is the appellant's duty to file a correct record. Tyus v. State, 347 So.2d 1377 (Ala.Cr.App. 1977), cert. den., 347 So.2d 1384 (Ala. 1977); Rushing v. State, 40 Ala. App. 361, 113 So.2d 527 (1959)."

  9. Robinson v. State

    549 So. 2d 136 (Ala. Crim. App. 1989)   Cited 1 times

    it is the appellant's duty to file a correct record. Tyus v. State, 347 So.2d 1377 (Ala.Cr.App. 1977), cert den., 347 So.2d 1384 (Ala. 1977); Rushing v. State, 40 Ala. App. 361, 113 So.2d 527 (1959)."

  10. Stubbs v. State

    522 So. 2d 317 (Ala. Crim. App. 1987)   Cited 6 times

    It is appellant's duty to file a correct record. Tyus v. State, 347 So.2d 1377 (Ala.Cr.App. 1977), cert. denied, 347 So.2d 1384 (Ala. 1977); Rushing v. State, 40 Ala. App. 361, 113 So.2d 527 (1959)."