Nutt v. State, 63 Ala. 180

Nutt v. State

63 Ala. 180 | Ala. | 1879

STONE, J.

In trials for capital offenses, the statute requires that the .defendant, if in actual confinement, shall be served with a copy of the indictment, and of the list of jurors summoned for his trial, at least one entire day before the day appointed for his trial. — Code of 1876, § 4872. The rule of service is different, when he is not in actual confinement. The reason of this statute is, that the accused may be informed of the charge against him, so that he may prepare for his defense. The indictment charges the murder of Luke Hodnett. The paper served as a copy describes the slain as Luke Hadnett. The names are clearly not idem sonans ; and it follows, that a literal copy of the indictment was not, in fact, served on the defendant. — Whar. Amer. Cr. Law, § 596; Sayres v. The State, 30 Ala. 15; Page v. The State, 61 Ala. 16. The variance in the present case may appear slight, and possibly it may be assumed the accused was not misled by it. Still, it is a variance. A copy of the indictment was not served. If we were to disallow this objection, on the ground that the variance did not mislead, we enter upon an uncertain field of probabilities, and know not where we would find a limit. Better to err in favor of life and liberty, than to enter upon ground so dangerous. The statute guarantees to persons so charged the right to have a copy of the indictment upon which they are to be tried, and it is not for us to say anything less than a copy meets this requirement. The Circuit Court erred in ruling the defendant to trial.

2. We need not consider the charges bearing on the question of murder in the first degree. The • jury acquitted the defendant of the highest grade of homicide, and found him guilty of murder in the second degree. He can not be again put on trial for a higher offense than that of which he was convicted — murder in the second degree. — Bell & Murray v. The State, 48 Ala. 684. So, whether the court’s rulings on the crime of murder in the first degree were right or wrong, is immaterial in the further trial of this cause.

3. Murder in the second degree may be committed without an intention to take life. Mere words, no matter how insulting, never reduce a homicide to manslaughter. So, if *185one strike another, not in self-defense, with intent to maim him, and death ensue; or, if one, in the attempt to commit a felony, kill another without intending it; in either case, he is guilty of murder in the second degree. Charges 6, 7 and 10 were rightly refused. In Judge v. The State, 58 Ala. 406, and Mitchell v. The State, 60 Ala. 26, we discussed these questions so fully, that we consider further comment on these charges unnecessary. Charges 8 and, 9 we consider abstract, and they were rightly refused on that account, if on no other.

Reversed and remanded. Let the accused remain in custody, until discharged by due course of law.