| Ala. | May 8, 1906
The defendant was convicted of the offense of murder in the second degree. The case was formerly before this court, and the appeal dismissed because of the failure of the transcript to show the judgment of the court below. It is insisted by the appellee that the dismissal of the appeal is conclusive against the right of the appellant to prosecute this second appeal to this court.
While there are some authorities to the effect that when an appeal has been dismissed the party cannot take a second appeal. In most of those cases the facts were that the appellant himself voluntarily dismissed his appeal.. Without subscribing to the correctness of those cases, even to that extent, we think that the great weight of authority, which we think, also, is in consonance with the analogies of the law, sustains the proposition that where the merits of the case are not passed upon, and the case was dismissed on account of the failure of some technical requirement, the party may prosecute a second appeal within the time prescribed by law. — 2
The motion to quash the venire was made in time. Although the defendant had announced that he was ready for trial, yet nothing had been done to commence the trial. The motion to quash the venire was properly overruled. Although the three raines mentioned were on the list, yet the memorandum, on the same paper, to the effect that those, parties were not found, ivas a sufficient notice that those names were not included in the list from which the jury was to be selected. This was a clear, explicit notice that the names were not included in the venire, and, while it is not commended as a proper practice, yet “the defendant and his counsel were not misled thereby.” The objection is technical, but not meritorious. — Cole v. State, 105 Ala. 80, 16 South. 762.
The copy of the venire served upon the defendant is not required to be signed by the sheriff.
There being no error in the record, the judgment of the court is affirmed. .
Affirmed.