193 So. 873 | Ala. | 1939
Defendant (Wiley Bailey) was convicted of miscegenation (section 5001, Code 1923), and upon appeal the Court of Appeals reversed the judgment and discharged the defendant from further custody. His case was treated, from a legal standpoint, as a companion case to that of Granston Rogers v. State, Ala.Sup.,
Looking therefore to the Rogers case, it appears the judgment of discharge by the Court of Appeals,
With the exception of the racial feature, the constituent elements of the offense of miscegenation are the same as in ordinary cases of adultery and fornication. Jones v. State,
There was no bill of exceptions in the case, and of consequence no indication as to the proof or defense, other than a plea of not guilty, as shown by the record proper.
Our case of Gore v. State,
The Court of Appeals, therefore, in our opinion erred in its order of discharge of the defendant upon the legal theory above indicated.
True the opinion also treats the question of the indictment containing a count for a felony, and also one for a misdemeanor with a general verdict of guilt thereon, as considered by this Court in Owens v. State,
But as an error of this character only justifies a reversal of the cause, as indicated in this latter authority, and as the Court of Appeals has rendered a judgment discharging the defendant, it is clear that the ruling was based upon the question first hereinabove treated. And upon reconsideration of the cause by the Court of Appeals, no doubt that court will give due consideration to the State's insistence that the amended certificate of the clerk of the circuit court discloses that in fact as to the misdemeanor count there was a nolle prosequi entered before defendant's trial. Though the State seems to have petitioned for a certiorari, yet no motion was made to set aside the submission, which should have preceded or accompanied the request for a certiorari to complete the record. This should have been done, and the matter was not, of consequence, properly brought to the notice of the Court of Appeals.
We think the proper course here is to reverse the judgment of the Court of Appeals, and remand the cause to that court, when the State may then proceed as above indicated for a corrected record. If the record is as insisted by the State, then, of course, this latter question is likewise eliminated from the case.
Writ awarded. Reversed and remanded.
ANDERSON, C. J., and GARDNER, THOMAS, BOULDIN, BROWN, and FOSTER, JJ., concur.