39 Ala. 75 | Ala. | 1863
The record informs us, that copies of the indictment, and of the list of jurors summoned for the trial of the prisoner, were served on him two entire days before the day appointed for his trial. The prisoner was in actual confinement at the time. It is objected, that the service was not also upon the prisoner’s counsel, and that the papers, when served, were not read to the prisoner. There is nothing in either of these objections; the statute not requiring either of these .things to be done, unless, when the prisoner is not in actual confinement, the first named rule must be conformed to, in a certain contingency. — Code, § 3576.
Such argument answers itself. Conceding both counts to be in manslaughter, and charging one and tbe same offense, if tbe verdict be held to be an acquittal of that offense, because it in effect finds tbe defendant not guilty under tbe second count; by tbe same line of argument, tbe verdict must be held to be an affirmation that tbe defendant is guilty of manslaughter, because it finds bim guilty of that offense under tbe first count. But we are not left to tbis fine of argument; for, although tbe two counts may alike charge tbe crime of voluntary manslaughter, and may be in law tbe same, they are widely different in fact, because maliciously and voluntarily are words of decidedly different signification. In such case, it is very clear that, if tbe jury bad expressly found tbe defendant guilty on tbe first count, and not guilty on tbe second, such finding, on a trial after reversal, could not be regarded as a bar to a second conviction on tbe first count.
Tbe judgment of tbe circuit court is reversed, and tbe cause remanded. Let tbe prisoner remain in custody, until discharged by due course of law.