Bazell v. State

89 Ala. 14 | Ala. | 1889

SOMEBVILLE, J.

The nolle-prosequi entered by the State, after the defendant’s plea of misnomer, put an end to the particular indictment. The second indictment, for all purposes, save as affected by the statute of limitations, was the beginning of a new prosecution. — Code, 1886, §§ 4389-90, § 3715; 1 Bish. Crim. Proc. (3d Ed.), § 1395. It follows from this principle, that the costs of the dismissed prosecution are not chargeable against the defendant. It is apparent from the record that a part of such costs was taxed against him, but the precise amount does not appear from the evidence, and it is shown' that he was sentenced to imprisonment for their satisfaction. This was error, for which the judgment must be reversed.

The fact that the owner of the stolen hog may have failed to comply with the statute (Code, 1886, §§ 1361-63) requiring hogs running at large to have ear-marks or brands, and to have them recorded in the office of the judge of probate, was immaterial, if the hog in question was otherwise sufficiently identified. This neglect on his part, as was properly held by the court, would not justify the larceny of his property by the defendant.

We discover no other error among the rulings of the court than the first above pointed out. ,

The judgment of the City Court is reversed back to the conviction only, and the cause remanded, that the trial court may correct the sentence.' — Herrington v. State, 87 Ala. 1; Ex parte Simmons, 62 Ala. 416.

Reversed and remanded.