
    THE STATE v. OTHO SUTTON, Appellant.
    Division Two,
    February 7, 1911.
    SETTING ASIDE ORDER OF APPEAL: Granting New Trial and Subsequent Conviction. The action of tlie trial court, after having overruled defendant’s motions for new trial and in arre'st and after' having made an order granting him an appeal and approving his bond, in setting aside said orders and again taking up the motions and sustaining them and granting him a new trial, upon its own initiative and in the absence of ‘defendant, was without authority of law and illegal; and upon a proper plea in bar being filed, a subsequent conviction and judgment thereafter should he set aside, and the former judgment considered as in force. [See State v. Sutton, page 244, this volume.]
    Appeal from Reynolds Circuit Court. — Hon. Jos. J. Williams, Judge.
    Reversed
   BROWN, J.

The defendant was convicted in the circuit court of Reynolds county on May 29, 1910, on an information charging him with having carnal knowledge of one Ida Speer, an unmarried female, between the ages of fourteen and eighteen years, of previous chaste character. The record proper shows that this was the.second conviction of the defendant in this case.

The defendant filed a plea in bar, reciting a prior conviction herein on the 25th day of November, 1909, and an appeal from the judgment on such conviction; and while the plea in bar is not preserved in the bill of exceptions, it is alleged by the defendant and admitted by the Attorney-General that this is the same case in which a judgment and conviction in the trial court, rendered on the 25th day of November, 1900', was affirmed by this court at its present term.

As will be seen by our first opinion herein filed, we have found that the action of the trial court in awarding defendant a new trial of its own motion after it had granted him an appeal to this court and had approved his appeal bond, was unauthorized and without warrant of law. Ve are of the opinion that all the proceedings in this cause had in the circuit court of Reynolds county after the granting of the first, appeal on the 25th day of November, 1909, are'illegal.

The judgment of the circuit court of Reynolds county, entered on the 31st day of May, 1910, adjudging the defendant guilty, and assessing his punishment at a fine of five hundred dollars, and three months’ imprisonment in the county jail, is therefore reversed.

Kennish, P. J., and Ferriss, J., concur.  