Smith v. State

79 Ala. 21 | Ala. | 1885

CLOPTOE, J.

Section 4819 of the Code provides: “ When the judgment is arrested, or the indictment quashed, on account of any defect therein, or because it was not found by a grand jury regularly organized, or because it charged no offense, or for any other cause, the court may order another indictment to be preferred for the offense charged, or intended to be charged ; and in such case, an entry of record must be made, setting forth the facts.”

An indictment was preferred against the defendant, for assault with intent to murder, at the August term, 1882, of the Circuit Court. At the January term, 1886, the prosecution was dismissed, on the ground, that the indictment was not indorsed “ a true bill,” signed by the foreman of the grand jury, as required by section 4777. An entry of record was made, setting forth the facts, and ordering another indictment to be preferred for the offense charged. Another indictment was preferred, at the samé term, on which the defendant was tried and convicted. A motion in arrest of judgment was made, on the ground, that the record shows the offense was committed more than three years before the indictment was preferred, and was barred by the statute of limitations.

By section 4820, when a new indictment is preferred under the provisions of section 4819, the time which elapsed between the finding of the first and the subsequent indictment must be deducted from the time limited by law for the prosecution of the offense. Without deciding whether, in the state of the record, the bar of the statute of limitations can properly be raised by a motion in arrest of judgment, the minute-entry and order for a new indictment substantially conform to the statute. The motion in arrest of judgment was properly overruled. Weston v. State, 63 Ala. 155.

In Clarke v. State, 78 Ala. 474, we had occasion to consider the extent of inquiry permissible on cross-examination of a defendant in a criminal prosecution, while testifying as a witness in his own behalf, at his own request. We then held, that on objection being made by the defendant, through his counsel, the prosecution can not inquire into past offenses, which the defendant had really, or w7as supposed to have committed, and which were not connected with the offense for .which the defendant is on trial, nor pertinent to the issue, and did not tend to elucidate it. The court erred in not excluding the question directed to a previous indictment against the defendant, and the offense for which he was indicted.

For this error, the judgment must be reversed.

Reversed and remanded.