43 Ala. 402 | Ala. | 1869
On the 20th day of April, 1869, John Yincent was indicted in the circuit court of Elmore county, in this State, Hon. J. Q. Smith presiding, for the offense of burglary. At the same term of the court at which he was so indicted, said Yincent appeared to answer said indictment and pleaded not guilty. Thereupon a jury was sworn, charged, and empanneled to try the issue upon said plea. After hearing the testimony the cause was delivered by the court to the jury, on the 22d day of April, 1869, and they retired to consider their verdict. Afterwards, on the morning of the 23d day of said month of April, “it being the day after all the business of the court, civil and criminal, was finally disposed of, the juries discharged for the term,
The offense charged in this case, in the court below, was burglary. The indictment was found under section 3695 of the Eevised Code, which makes such an offense punishable by confinement in the penitentiary. It is therefore a felony. — Eevised Code, §§ 3695, 3541.
This court will take notice, that the terms of the circuit courts for Elmore county commence on the second Mondays in April and October in each year, and that they may continue two weeks. — Pamphlet Acts, 1868, p. 13 ; Eevised Code, § 750. And that the second Monday in the month of April, 1869, was the 12th day thereof; and that the 22d day of said month was Thursday ; and that the 23d day of said month was Friday. — Phill. Ev. 620,625. This court will also take notice that the spring term, 1869, of the circuit court of said county of Elmore, ended on Saturday, the 24th day of April, 1869, at 12 o’clock at night, of that day.
The bill of exceptions shows that the jury had been
This reason was not sufficient to authorize the judge presiding to discharge the jury, without the consent of the defendant. He had gone to trial and submitted, his case to the jury, and was entitled to the whole term to have his case disposed of, unless some necessity intervened which rendered this impracticable or impossible; his rights were the same had there been no other case in the court but his own. The jury were, therefore, improperly and illegally discharged. Thisis tantamount to an acquittal. Therefore, the prosecution can not be further maintained against the defendant in the court below.—Ned v. The State, 7 Port. 187; McAuley v. The State, 26 Ala. 135.
Our conclusion is that the prisoner, John Vincent, must be discharged from further prosecution on said indictment, or for the offense therein charged.