Flanagan v. State

| Ala. | Jun 15, 1851

CHILTON, J.

The record of the conviction of the plaintiff In error is in a Very confused state. No plea or issue appears in it, nor does it appear that he was ever 'arraigned. The only-evidence afforded as to the issue tried by the jury, is found in the judgment entry, which recites that “ the defendants came in their proper person, also their attorneys; and the defendant, O. H.-P. Wright, demurred to the first count in the bill of indictment, which having been argued by counsel, is overruled by ‘the court. The State then moved that the defendant be tried 'on the first count in 'the indictment, and that the second count be postponed until the first is disposed of, to which there was no dissent by the'defendants; and thereupon the State announced itself ready for trial on the first count of the bill of indictment, ’and the defendants did the like, whereupon came a jury, to-wit, &cv, who having been duly elected, tried and sworn well and truly to try the issue joined, upon their oaths say, that they find, the defendant. Francis L. Flanagan, guilty as charged in the bill of indictment, and that they find the other'defendant, O. H. P-. Wright, not guilty»5’ The court upon'this finding proceeded to sentence Flanagan to five years imprisonment in the penitentiary, and the record then states, that “ the solicitor, by leave of the court, enters a nolle prosequi as to the remaining count;” and thereupon the defendant, Wright, was discharged.

Although there is much plausibility in the position assumed by the Attorney General, that' the postponing' óf the second count until the first was disposed of, amounted to an abandonment by the solicitor of the second count, we do not think the record will be'ar him out in that 'construction.' That distinctly informs Us that the second count was merely postponed (delayed or deferred) to a future' period, 'and that period is designated; namely, until after the first count is disposed of. How then can we say it was abandoned % The fact, moreover, that the solicitor afterwards entered 'a nolle prosequi as to the second count, shows that he did not abandon it.

It is not contended by the learned counsel for the State, that 'an indictment containing several 'counts can thus be split up, and that the defendant may be tried upon the second count after a trial and conviction, or acquittal upon the first. This would •manifestly be putting the prisoner twice in jeopardy for the i-ame offence, and would amount to a palpable violation of his constitution®! rights.- This was clearly an error. But, it is'said, that' to this “ there was no dissesit by the defendants.” Whether,- if they had given their assent directly and positively to this mode of trial, the prisoner would have been concluded by it, and estopped from pleading the former conviction in bar of a subsequent prosecution, it is not material now to inquire.- The language here employed does not justify the court in concluding that any such assent was given as should conclude the defendant. However true it may be, as a rule governing syntactical construction, that the use of two negatives constitutes an affirmative, it would be very ithsafe in legal proceedings, involving the lives or liberties of the citizens, to rely upon such grammatical refinements in arriving at the true meaning of sentences. The most that may be safely predicated of the negatives here uséd is, that the defendant said nothing when- the court, upon the motion of the solicitor, ordered-that ho should be tried upon the first count,, postponing the second until that was disposed of.- Let us, however, concede that the prisoner did consent to go to trial upon one count only, the other being held over him- for future action.- This would not relieve the caso from error, since the jury find- him guilty generally upon the whole indictmentwhereas it is clear that if he pleaded to cither count, he was not called upon to respond tó the second, and did not plead to that. So that, as the record now presents the case, the prisoner was convicted-upon a count upon which he was not arraigned, and- to which he never pleaded.

But, it is argued, he has not sustained any injury from the error complained of, since the two counts embrace substantially the same charge, and a nolle prosequi having, been entered as to the second count, he is in no danger of again being tried upon that. In response to this, we have only to say, that in cases of this magnitude, which are made felonies by the statute, involving, as we have said, the liberty of the citizen, the court will not be astute in speculating upon the chances of injury to the accused, in order to sustain- a conviction effected under such circumstances, under a practice not warranted, as far as our researches extend,, by any precedent, and certainly opposed in its tendency to the fundamental law of the land. It is impossible for us to say what effect these irregularities may have had upon tlie finding of the jury, or- that their verdict was wholly uninfluenced by them. Neither can we say that-the defence may not haye been influenced prejudicially to the prisoner, by trying him upon one count, while the other was held oyer him for fu--ture action.

The court is unanimous in'the opinion,-that the sentence of conviction must'he reversed, - and the cause remanded, that the prisoner may he again tried upon the first count in the indictment. The usual order Trill be made for remanding the prisoner' to the appropriate county for trial.

Judgment accordingly.