40 Ala. 325 | Ala. | 1867
The assignments of error will be disposed of in the order in which they appear upon the record.
Upon reason and principle, it would seem that there ought to be no doubt of the correctness of this position; and it is strange that, in any Christian or civilized country, a different opinion should ever have obtained any favor or countenance. — 1 East’s P. C. 436, 440; The State v. Sullivan, Addison, 143.
The following authorities fully sustain the position, that under section 642 of the Penal Code, penetration alone is sufficient. — Rex v. Bussen, 1 East’s P. C. 438; Rex v. Jennings, 4 Car. & P. 249; 1 Lewin, C. C. 93; Rex v. Cox, 5 C. & P. 297; 1 Moody, C. C. R. 337; Rex v. Beekspear, 1 Moody’ C. C. R. 342; Brooks’ case, 2 Lewin, C. C. 267: Regina v. Allen, 9 Car. & P. 31.
Prior to the year 1776, the weight of English authorities was in favor of the opinion of Sir Matthew Hale, as above stated, (1 East’s Cr. Law, 439,) and we prefer to follow them, as they were prior to the revolution.
It was also improper to allow the jury to amend their verdict, under the circumstances shown by the record.— Vide authorities cited supra; Brister v. The State, 26 Ala. 108. The case last cited does not militate against the views we have taken of this case. And whenever it is allowable for a jury to make an amendment, the record should show affirmatively, in a case of felony, that the prisoner was present in court when the instruction was given to the jury to do so, and also when they returned with the- verdict as corrected, and delivered it to the court.— Vide authorities, supra.
The proper distinction, in all such cases, seems to be, that if the jury, by their verdict, ascertain and pronounce the prisoner guilty of the offense charged, then, although the verdict is otherwise informal or imperfect, and therefore reversible, the prisoner is not entitled to be discharged upon a reversal, but may be tried again. If the verdict fails to fix the guilt of the prisoner, and the jury should be discharged without his consent, and no sentence could be legally pronounced on the verdict, then he might be entitled to a judgment of acquittal thereon. There are cases in which a court may set aside a verdict, and order a venire de
Upon the above cited adjudications; we hold, that the judgment is reversible, and the prisoner can be again tried on the same indictment. — The State v. Redman, 17 Iowa R. 330. The case of McCauley v. The State (26 Ala. 126) does not conflict with these views, nor overrule the cases of Hughes v. The State, and Cobia v. The State, supra; nor has the case of Battle v. The State ever been questioned by this court, though it has been at the bar, and there is no necessity which requires a review of it in this case.
The judgment of the court below is reversed, and 4the prisoner will remain in the custody of the sheriff until discharged by due course of law.