Dover v. State
75 Ala. 40
Ala.
1883
Check Treatment
STONE, J.

The present application is not distinguishable in principle from the question ruled on in Waller v. The State, 40 Ala. 325, 333. In that case it was contended that the prisoner ought to be discharged from custody, “ on the ground that, upon the verdict as originally returned into court, no sentence could have been pronounced, and that he was entitled to judgment of acquittal thereon.” This court replied, that it could not assentto such a proposition. And in 1 Bish. O. Proc. § 1016, it is said : “ If the jury bringin a defective verdict, it is in the power equally of the prisoner and the prosecuting attorney to have it set right; and suppose the prisoner chooses not to interfere, and suffers a defective verdict to be entered, as his interest would always prompt him to do, in preference to a verdict of guilty in due form, he, by thus failing to interfere, waives his objection to being put a second time in jeopardy for the same offense.”—1 Bish. Cr. Law, § 998; Com. v. Gibson, 2 Va. Ca. 70; Com. v. Smith, Ib. 327; Com. v. Scott, 5 Grat. 697 ; State v. Sutton, 4 Gill, 494; Wright v. The State, 5 Ind. 527; State v. Redman, 17 Iowa, 329; State v. Walters, 16 La. Ann. 400; State v. Spurgin, 1 McCord, 252.

There was no want of jurisdiction of person, or of subject-matter in this case. The defect in the verdict may present a reversible error. Habeas corpus is not the remedy.—Ex parte Watkins, 3 Pet. 193; Ex parte Parks, 93 U. S. 18.

The writ of habeas corpus is denied.

Pise Cueiam.

Reversed and remanded, on authority of St. Clair v. Caldwell and Riddle, and authorities therein cited, 72 Ala. 527; Waller v. The State, 40 Ala. 325; Storey v. The State, 71 Ala. 329. The prisoner will remain in custody until discharged by due course of law.