Peters v. State

39 Ala. 681 | Ala. | 1866

BYRD, J.

The act of the 7th October, 1864, was not in force in this State, from the 20th day of July, 1865, to the 21st September, 1865.—Jeffries & Jeffries (freedmen) v. The State, at the present term. The prisoner could not, therefore, be punished under that act, as the evidence set out in the record shows that the offense committed, if any, was in September, 1865, prior to the 21st day thereof. Under this indictment, if the prisoner is found guilty on another trial, he can be sentenced as prescribed by sections 3180 and 3621 of the Code. All the evidence purports to be set out, but there is no proof of venue; and the jury fixed the term of imprisonment. These are errors, and this cause must be reversed.

Did the court err in overruling the objections of defendant to tbe admissibility of the testimony of the witness McAllister ? It does not appear, except by an unsatisfactory inference, that the witness made the threat before the defendant made the statement “ that he bought the mule from Gamble at the ferry.” It might also be inferred that the witness made the threat after the statement of the defendant, to induce him to confess. But this is equally unsatisfactory. In this state of the record, and as the question may not arise again in the same form, we deem it unnecessary to pass upon it.—Mose v. The State, 36 Ala. 211; Brister v. The State, 26 Ala. 107.

[2.] The record in this case is defective, in not showing that the grand jury was duly organized at the term of the court at which the indictment was filed. The only evidence that there was a grand jury, is the return endorsed on the indictment by the foreman. As this case is reversed on other grounds, we will give no opinion on this point; but suggest that the better practice is, to set out the minute-entry, in full, of the organization of the grand jury, in the transcript of each case in which an appeal is taken in a criminal prosecution.

[3.] It does not appear from the record that the prisoner was present when sentenced.

Let the judgment be reversed, and the cause remanded, and the prisoner will remain in custody, until discharged therefrom by due course of law.