State v. Neil

ON PETITION FOR REHEARING.

SULLIVAN, J.

This is a petition for rehearing. Under the provisions of section 8076, Revised Statutes, when the judgment of the appellate court is rendered iü a criminal ease, it must be entered in the minutes, and a certified copy of the entry forthwith remitted to the clerk of the court from which the appeal was taken. It would seem clear from the provisions of that section that the appellate court does not retain jurisdiction in criminal cases after the judgment *555is entered and a certified copy thereof remitted to the trial court; for after the remittitur goes down, the general rule is that the appellate court has no further jurisdiction. However, we have gone through the petition for rehearing,- and have concluded that a rehearing ought not to be granted, even if this court still had jurisdiction to hear such petition.

It is urged in the petition that the court misapprehended the facts in the ease; that in the original opinion the court assumed that the prosecutrix went boat-riding with the appellant, when according to the evidence she went with Macbeth. It is admitted in the petition that the statement in the transcript leaves it somewhat ambiguous, at first impression, as to which person went boat-riding with the prosecutrix. It is clear, at any rate, that she went boat-riding with Macbeth. The defendant testified that his arms were lame from rowing the boat, but conceding that the defendant did not take the prosecutrix boat-riding, it makes no difference; the evidence is amply sufficient to' sustain the verdict of the jury.

As to whether there were scratches upon the defendant’s face, there is a conflict in the evidence, and the jury, no doubt, passed upon that question. As to whether the parties locked arms, the defendant testified that he took hold of the prosecutrix’s arm, and they went outside and walked over to the bam where the mules were standing. The evidence also shows that they had their arms partly around each other.

We have gone carefully through the petition for rehearing upon the other points suggested, and are satisfied that if this court has power to "grant a rehearing, the showing is not sufficient in this case, and the petition for a rehearing must be denied.

Ailshie, C. J., concurs.