Opinion
6 Div. 502.
December 4, 1952.
R. Morel Montgomery, Birmingham, for petitioner.
Under Code 1940, Tit. 15, § 389, it is the mandatory duty of the Court of Appeals to render such judgment as the law demands. Having been entitled to his discharge in the trial court because of insufficiency of the evidence against him, defendant was entitled to an order of rendition on appeal. Donalson v. State, 252 Ala. 170, 40 So.2d 639; Robison v. State, 30 Ala. App. 12, 200 So. 626; Id., 240 Ala. 638, 200 So. 629.
J. Reese Johnston, Jr., Geo. B. Foss, Jr., and John H. Lair, Jr., all of Birmingham, opposed.
Petition of Sam Joseph Hall, Jr., for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Hall v. State, 36 Ala. App. 590, 61 So.2d 773.
The Court of Appeals reversed the judgment of conviction on the ground that "the evidence adduced fails to show that defendant was a vagrant within the meaning of any of the subdivisions of the ordinance"; and further held that "the trial court erred in denying appellant's motion to exclude the evidence and discharge defendant". An order was also made remanding the cause to the circuit court.
Petitioner contends that instead of a remandment, an order should have been entered discharging him.
We have held that when, on appeal in a criminal case, a judgment of conviction is reversed on the ground of insufficiency of evidence to sustain the charge, the defendant should not be discharged unless the court finds that further evidence to sustain the charge could not be adduced on another trial. Donalson v. State, 252 Ala. 170, 40 So.2d 639; Hendricks v. State, 252 Ala. 305, 307, 41 So.2d 423. Although this proceeding was initiated in the recorder's court, and has been referred to as being "quasi-criminal" and is subject, on review, to the rules governing civil appeals, State v. Town of Springville, 220 Ala. 286, 288, 125 So. 387; Casteel v. City of Decatur, 215 Ala. 45, 109 So. 571, we think the construction given to section 390, Title 15, Code 1940, in the Donalson and Hendricks cases, supra, is applicable here.
There is no finding by the Court of Appeals that further evidence to sustain the charge could not be adduced on another trial. Accordingly, the petition is due to be, and is, denied.
Writ denied.
LIVINGSTON, C. J., and FOSTER and SIMPSON, JJ., concur.