Daniel v. State

The defendant was tried in the county court of Morgan county, on a written accusation, charging him with the offense of simple larceny, to-wit: at he secretly and fraudulently took and carried away a bale of cotton of the value of $60 00, with intent.to steal the same. The defendant was found guilty, and a motion was made for a new trial in the county court on several grounds, which was overruled. The defendant then sued out a certiorari to the superior court, alleging, the same errors complained of in the motion for a new trial in the county court, and alleged that the county court erred in overruling the motion for a new trial on the grounds specified therein. The superior court overruled the certiorari and dismissed the same; whereupon the plaintiff in certiorari excepted.

1. We are not aware that the county court had any valid legal power or authority to grant a new trial in the case.

2. The defendant’s proper remedy was by certiorari in the first instance, but inasmuch as the whole case was brought before the superior court by a writ of certiorari, it was compe*224tent for that court to look into the record of the trial of the defendant in the county court, and to consider the errors alleged therein to have been committed on the trial, in the same manner as if there had not been any motion for a new trial in the county court.

3. It appears from the evidence in the record that the defendant claimed an interest in the bale of cotton alleged to have been stolen by him; that he took it publicly in the day' time from the gin-house where it was ginned; that he raised the cotton; that the extent of his interest in it depended on the settlement of the accounts between him and Reid. The county court erred in not requiring the witness, Reid, to produce the book of account against the defendant, which he admitted he then had in his pocket, inasmuch as he referred to that book of account in his testimony, as containing a statement of the defendant’s indebtedness to him.

4. There is no evidence in the record of the value ofthe cotton alleged to have been stolen by the defendant. In our judgment the court erred in overruling the defendant’s certiorari.

Let the judgment of the court below be reversed.