Barber v. State

43 So. 808 | Ala. | 1907

ANDERSON, J.

The judgment entry shows a sufficient compliance with the statute (sections 50G4 and 5005 of the Code of 1896) as to arraignment, setting case for trial, drawing venire, and ordering service of copy of venire and indictment. It also sufficiently shows the presence of the defendant at all stages of the trial. — Dix v. State, 147 Ala. 70, 41 South. 924. The statute does not require that the case be set for trial a day previous to the drawing of the jury. It is sufficient if the date of the trial is fixed the same day the jury is drawn. The statute means that these things must be done at least one entire day before the day which is set for the trial, not that the date for the trial must be fixed an entire day before the venire is drawn. The trial court properly overruled the motion to quash the venire.

Without determining the sufficiency of the defendant’s special plea, to which the trial court overruled the state’s demurrer, the state’s replications were not subject to the defendant’s demurrers, which were properly overruled by the trial court. The plea, among other things, avers: “And said court had jurisdiction to hear and try the defendant for said offense." If the indictment was void, and the trial had at a place not authorized by law, then the court did not have jurisdiction, and the first and second replications were in effect general denials of the plea, and put the burden upon defendant of proving that the trial was had by a court with jurisdiction. The third and fourth replications merely put in issue the jurisdiction of the court, at the former trial by setting ont the facts that the indictment was found and the trial had at “Pell City” and at a time and place unauthorized by law. If the indictment was void, the court had no jurisdiction to try the case, and a judgment on a void indictment would not support defendant’s plea. — Sims v. State, 146 Ala. 109, 41 South. 413. And if the indictment was found and the trial had at Pell City, then the court had no jurisdiction, and everything done there was void. — Ex parte Birmingham & Atlantic R. R., 145 Ala. 514, 42 South. 118; Barber v. State, 143 Ala. 1, 39 South. 318.

“A plea of former acquittal and of not guilty should not be interposed at the same time. The plea of former acquittal should contain a protestation of innocence, and should precede a plea of not guilty. This last plea is not necessary, if the first prevails. — 1 Bish. Cr. Pr. §§ 577, 578. If the two pleas are tendered together, they should not be submited to the jury at once; but the court should order the special plea passed upon first.— Id. If the plea is determined against the defendant, he is allowed to plead over, and to have his trial for the offense itself. — 1 Whar. Am. Cr. Law, § 578. On an indictment for a misdemeanor, if the defendant interposes the plea of autrefois acquit, or autrefois convict, and the plea of not guilty, at the same time, and without objection proceeds to trial on both, he waives the irregularity, and, if the jury pronounce on both pleas, he cannot take, advantage of it. — Dominick v. State, 40 Ala. 680, 91 Am. Dec. 496. In a case of felony the rule is different. The failure to make objection to the trial of both issues at the same time is not a waiver of the irregularity, and advantage of it may be taken in arrest of judgment or on error. Foster v. State, 39 Ala. 229.”— Faulk v. State, 52 Ala. 416. The bill of exceptions shows that the solicitor moved the court to submit the issue under the plea of former jeopardy and the replication thereto to the jury first and separate from the other issues, “and the defendant thereupon objected and resisted the motion ,and requested and moved that said matter be submitted to the jury along with the other issues in the case.” If there was error, it intervened at the instance and request of the defendant, and he cannot complain because the court granted his request. — McAlister v. State, 17 Ala. 434, 52 Am. Dec. 180. Moreover, the bill of exceptions does not show that any evidence whatever was offered in support of the plea, and the error of submitting it with the other issue was not injurious to the defendant. — Faulk v. State, supra; Lucas v. State, 144 Ala. 63, 39 South. 821, 3 L. R. A. (N. S.) 412; Winston’s Case, 52 Ala. 419.

The defendant was not injured by a failure of the trial court to render a formal judgment on the verdict of the jury finding the issue on the special plea, in favor of the state. There was no proof of the plea, and the jury properly found in favor of the state, and a party cannot complain of a neglect on the part of the court to do a thing which is neither of benefit or detriment to. him. The verdict of the jury eliminated the plea. — Section 4333 of the Criminal Code of 1896.

We have carefully considered the ruling of the trial court upon the evidence, and pronounce it free from reversible error, and a detailed discussion of each exception will but uselessly incumber the books with a,rehash of elementary rules.

The trial court properly refused charge A, requested by the defendant. There was no proof offered in support of the plea. Moreover, the bill of exceptions does not purport to contain all the evidence.

Charge B, requested by the defendant, was properly refused. It was the general charge, and there was sufficient evidence to warrant a conviction.

There was no error in refusing charge X, requested by the defendant. If not bad in other respects, it sin- . gles out a part of the testimony of a witness, and gives undue prominence to the portion thereof, which is most favorable to the defendant. Trial courts are justified in refusing such charges.

The judgment of the circuit court is affirmed.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.