Turk v. State

140 Ala. 110 | Ala. | 1903

McOLELLAN, O. J.

The pleading of defendants, held by the circuit court to he insufficient in law, was not a motion to quash the indictment, but a plea of former jeopardy in bar of this prosecution. The demurrer of the State to this pleading was upon the ground only “that the plea shows no reason in law why the indictment in this case should he quashed.” This assignment is, in the first place, inaptly expressed; and in the next place it is essentially a general demurrer. It might well have been overruled on the latter ground. — Code, § 3303.

We are further, however, of the opinion that the plea Avas not open to any objection, and that its averments presented, a good defense to the prosecution. It is conceded, and correctly so, that the facts averred show that the defendants had been put upon trial under the first indictment and Avere in jeopardy under it when that indictment was quashed by the court against defendants’ objection and the jury, to Avhom thé case in legal contemplation had been submitted, Avere discharged, unless that indictment was so defective as that a conviction under it AA'onld have been annulled and set aside on appeal. So that the sole question here is AA'hether the original indictment ivas sufficient to support a conidction. Of course, if that indictment was not fatally defective for the omission of the word “him” as sIioavu in the plea — if it be sufficient in charging the crime of assault \hth intent to murder to aver “that A. B. unlaAvfully and with malice aforethought did assault O.' D., with intent to murder,” etc., omitting after the word “murder” the Avord “him,” or equivalent phrase, as “the said O. D.,” the first indictment was a perfectly good presentment for the offense of assault Avith intent to murder. Probably, howeArer, that omission rendered that indictment so defective as that a conviction of the felonious assault coulcl not be sustained; and we will assume without deciding, that to be true. But it by no means follows that the indictment did not charge any offense. On the contrary, its averments embodied a perfectly good charge of assault with circumstances of aggravation.—Murdock v. State, 65 Ala. 520. Of this offense the defendants were in jeopardy of conviction in the trial upon which they had entered, and such conviction would have stood upon appeal. That offense was, of course, embraced in the second indictment; and the former jeopardy as laid in this plea was a defense to them against that indictment.

The circuit court erred in sustaining the demurrer to the plea. For that error the judgment of conviction must be reversed. The cause will be remanded.

Beversed and remanded.