62 Ala. 29 | Ala. | 1878
It is urged in favor of the ruling of the Circuit Court that the case of Foster v. The State, 38 Ala. 425, settles the questions presented by this record adversely to appellant. We do not think the cases entirely analogous. In allowing the entries on the judge’s docket to be read to the jury, we think the Circuit Court erred. The bill of -exceptions does not inform us in whose hand-writing those entries were, nor by whom made. If it appeared that they were in the. proper hand-writing of the presiding judge, they furnished sufficient authority for making a record of the pro-
There is a discrepancy which should have been explained. The first indictment was against Henry Smith, and charged that he uttered the offensive language in the dwelling house, &c., of Sarah Holly. The second indictment is against James Henry Smith, and described the place as the dwelling house of John S. Turner. Prima facie, these are two distinct offenses, and the prosecution of one could not prevent the running of the statute against the other. If the offense was one, and the offender the same, this should have been shown. The witnesses could have explained it. — Thomason v. Odum, 31 Ala. 108; Evans v. Billingsley, 32 Ala. 392; Davidson v. Shipman, 6 Ala. 27 ; State v. Matthews, 9 Por. 370 ; 1 Brick. Dig. 860, §§ 799, 800; Blackburn v. Winter, 22 Ala. 613; Young v. Fuller, 29 Ala. 464.
Beversed and remanded. Let the defendant remain in custody until discharged by due course of law.
