42 So. 2d 693 | Ala. | 1949
Lead Opinion
We are of opinion that the writ of certiorari should be denied for the reason that the merit of the plea of former jeopardy cannot be tested by petition for writ of habeas corpus, but must be specially pleaded to the indictment or it is waived. Jordan v. State,
Writ denied.
FOSTER, LAWSON and SIMPSON, JJ., concur.
Addendum
The statement of the facts gives a negative answer to this contention. Under the facts stated, at the time petitioner voluntarily entered his plea the circuit court had not acquired jurisdiction of the offense of the murder charge. Nor could such jurisdiction have been invoked at that time for the reason that Hutto was then alive. Diaz v. United States,
The statute, Code of 1940, Title 15, § 28, provides inter alia:
"If it appears that the party is in custody, by virtue of process from any court legally constituted, or issued by any officer in the course of judicial proceedings before him, authorized by law, he can only be discharged:
"(1) Where the jurisdiction of such court has been exceeded, either as to matter, place, sum, or person.
* * * * * *
"(3) Where the process is void in consequence of some defect in matter or substance required by law.
* * * * * *
The process under which petitioner was in custody not being void, a plea of former jeopardy could be litigated only in the circuit court wherein the indictment for murder was pending. Ex parte State ex rel. Attorney General,
The petitioner is not aided by State v. Blevins,
In the first case cited the defendant was put on trial before a court of competent jurisdiction for an offense of which the court had jurisdiction. And *43 the court, instead of pronouncing upon the defendant's guilt or innocence of the offense with which he was charged and for which he was being tried, bound him over to await the action of the grand jury for an offense not covered by the proceeding.
In the Hazelton case, supra, to quote from the opinion, the Court said: "The sole question here propounded is whether or not the recorder had final jurisdiction to pronounce upon the guilt or innocence of the defendant on these charges. Both of the offenses were committed, if at all, within the police jurisdiction of the town, and are punishable by fine and imprisonment in the county jail or by sentence to hard labor for the county, and are, therefore, misdemeanors. * * *"
In that case the recorder in place of pronouncing on the guilt or innocence of the defendant for the offense charged against him, bound him over to the grand jury to await an indictment for a felony which was not charged against him in the complaint on which he was tried.
It has long been the settled law that where a defendant is put on trial before a court having jurisdiction of the offense and the trial is proceeded with under a plea of not guilty and the judgment entered is not in accordance with the court's jurisdiction of the offense charged, the court has no power to hold him for another offense or a higher offense not charged in the complaint on which he was tried. See Ex parte Pruitt
Harper,
These decisions are not apt authority in this case. The circuit court of Houston County in which the indictment was pending is the only forum in which the question of former jeopardy can be litigated.
The application for rehearing is, therefore, overruled.
Application overruled.
FOSTER, LAWSON and STAKELY, JJ., concur.