Mooring v. State

129 Ala. 66 | Ala. | 1900

HARALSON, J.

The juror, Edwards, had been sworn; the jury for the trial had been niade up from the regular juries in attendance for the week, and said juror had 'been accepted by the State and the defendant; the indictment had been read to the jury, and the defendant pleaded not guilty thereto. After this, the juror 'Should not have been set aside on the application of the State and challenged for the cause stated, and liis place filled by another, without the consent rof the defendant.—Smith v. The State, 55 Ala. 1; Sparks v. The State, 59 Ala. 82; Rash v. The Sate, 61 Ala. 90; Roberts v. The State, 68 Ala. 515; Henry v. The State, 77 Ala. 75; Daniels v. The State, 88 Ala. 220.

As appears, the trial was proceeded with, without objection on tlie part of the defendant, with the jury as completed by the substitution of another in the place of the juror withdrawn and "challenged. If, under the facts stated, the defendant was placed in jeopardy before the withdrawal of said juror, and his withdrawal operated a discharge of defendant, if former jeopardy had been properly pleaded, still, the defendant did not plead his alleged former jeopardy; and, if it existed and. might have been pleaded, it cannot be here, for the first, time raised. Former jeopardy must be specially pleaded, and cannot he given in evidence under the general issue.—Baysinger v. The State, 77 Ala. 60; DeArman v. The State, Ib. 10.

Whether by proceeding with the trial, without objection by defendant, after, as alleged, -lie lrad been previously put in jeopardy, be did not waive tbe privilege of pleading that fact, thereafter, is a question we do not care at tliis time consider or decide.

For tbe error indicated, let tbe judgment and sentence of tbe circuit court be reversed.

Reversed and remanded.