
    (38 South. 889.)
    No. 15,719.
    STATE v. FAIRBANKS.
    (June 19, 1905.)
    CERTIORARI — WHEN TIES.
    A proceeding by certiorari for the review of a verdict and sentence in a criminal case has no function to discharge where an appeal from such verdict and sentence has been sustained.
    (Syllabus by the Court.)
    Clay W. Fairbanks was convicted of assault by willfully shooting, and appeals, and, he prays for writs of certiorari, prohibition, and habeas corpus.
    Dismissed.
    
      Dagg & Dale, for relator. Respondent judge, pro se.
   Statement.

MONROE, J.

Relator alleges that upon April 28, 1905, he was convicted by a jury of 12, 11 jurors concurring, in the district court of the parish of Catahoula, upon a charge of “assault by willfully shooting at,” etc., and that on the following day he was sentenced; that it was his intention to appeal, but that the court adjourned almost immediately, and that he was not aware that it would not be in session during the following week; that on the Monday following the Saturday upon which he was sentenced the judge left the parish, and went to Winnsboro, in the parish of Franklin; and that on the next day relator employed counsel, who obtained for him in the parish of Franklin an order of appeal to this court. He further alleges that he lodged the appeal here in due time, but that the Attorney General has moved to dismiss it on the ground that the order was not granted in open court, and he further sets forth the reasons for which he thinks that the verdict and sentence should be set aside, and prays that the same be reviewed, by means of the writ of certiorari, to be made returnable and heard with the appeal or motion to dismiss the appeal.

Opinion.

As the appeal has been sustained, this proceeding has no function to discharge. It is therefore dismissed, at the cost of the relator.  