Johnson v. State

134 Ala. 54 | Ala. | 1901

MoOLELLAN, C. J.

The indictment was sufficient in averment. It had been regularly returned and presented by a duly constituted grand jury. On being arraigned the defendant entered his plea of “not guilty” to) it. No- plea of former jeopardy or of former acquittal was ever presented or filed or offered to be made or filed. If it be conceded that the defendant had been in jeopardy or, in legal contemplation, acquitted under a former indictment for the same offense by reason of the facts that he had been put to trial on a former indictment, that ini the course of that trial the evidence developed a variance as to the name of the person alleged to have been robbed, that the solicitor had thereupon dismissed the purosecution under section 4918 of the Code with a view to- the preferment of another indictment] and that the proper order to that end was not entered by the court (McClellan v. State, 121 Ala. 18), such jeopardy or acquittal furnished no ground for quashing the present indictment, but should have been specially pleaded, and the special plea, or pleas, should have been interposed, before the plea of “not guilty,” else the point is waived. — Rickles v. State, 68 Ala. 538; Jordan v. State, 81 Ala. 20, 30, and cases cited. So if the facts had involved matter proper for a motion to quash, the'motion should have been made before pleading to the indictment; and had the facts been such as would have justified the quashing of the indictments and the motion to that end had been seasonably made, yet, it would seem that it was in the unrevisable discretion of the tidal court to- overrule the motion and put the defendant to his demurrer or plea in abatement. — State v. Jones, 5 Ala. 666, 670; Nixon v. State, 68 Ala. 535; Bryant v. State, 79 Ala. 282. The appellant can take nothing for the overruling of his motion to quash the indictment.

The cause being set down for trial on a day of a subsequent Aveek, the defendant Avas entitled to have served upon him a list containing the names of the special jurors ordered for his case and the names of the regular jurors avLlo had been drawn and summoned for such subsequent Aveek. A talesman brought' in to fill the place of a regular juror Avku, having been drawn and summoned for that Aveek, failed to attend or Avas excused, had no place on the special venire for defendant’s trial, nor, consequently, on the list served on him. The motion of the defendant to quash the venire on the ground that the copy served on him did not contain the name of one such talesman was, therefore, propery overruled. — Johnson v. State, 133 Ala. 38.

Equally Avithout merit was the defendant’s objection to going to trial based on the ground that twelve of the special venire Avere at the time engaged in the consideration of another case.

Violations of municipal laws are quasi criminal offenses. Moreover, the police court of Birmingham has jurisdiction of minor offenses against State laws. The facts that defendant had been convicted two or three times in 'said court and had once been convicted of a felony and sent to the penitentiary supplied ample predicate for the solicitor’s remark: “This oft-repeated criminal should be severely dealt Avith.”

The refusals of the court to give the affirmative charges requested by defendant were so obviously proper as not to admit of discussion.

Affirmed.