After a careful examination of the entire record in this case, the testimony as shown by the bill of exceptions, this court is of the opinion that the trial court erred in refusing to grant to the defendant a new trial as prayed in his motion.

For this error, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

However, upon a careful consideration of the evidence in this case, we are of the opinion that the affirmative charge should have been given for the defendant, and therefore the application for rehearing is overruled.

Application overruled.

After a careful examination of the entire record in this case, the testimony as shown by the bill of exceptions, this court is of the opinion (that the trial court erred in refusing to grant to the defendant a new trial as prayed in his motion.

For this error, the judgment is reversed, and the cause is remanded.

Reversed and remanded.

On Rehearing.

[1] On application for rehearing made by the Attorney General, our attention is called to the fact that the motion for a new trial was made in the court below after the cause had been removed from the circuit court by appeal. That court had no jurisdiction to entertain the motion after an appeal had been taken, and therefore of course, no power to grant it. Hudson v. Bauer Grocery Co., 105 Ala. 200, 16 South. 693; De Bardeleben v. State, 16 Ala. App. 367, 77 South. 979 (opinion).

[2] However, upon a careful consideration of the evidence in this case, we are of the opinion that the affirmative charge should 'have been given for the defendant, and therefore the application for rehearing is overruled.

Application overruled.