Alford v. State, 8 Div. 169.

• Decision Date: 30 June 1942
• Docket Number: 8 Div. 169.
• Parties: ALFORD v. STATE.
• Court: Alabama Court of Appeals

10 So.2d 370

30 Ala.App. 590

ALFORD v. STATE.

8 Div. 169.

Alabama Court of Appeals

June 30, 1942

Rehearing Denied Oct. 6, 1942.

Appeal from Circuit Court, Morgan County; Seybourn H. Lynne Judge.

Certiorari denied by Supreme Court in Alford v. State, 10 So.2d 373.

Russell W. Lynne and S. A. Lynne, both of Decatur, for appellant.

Thos. S. Lawson, Atty. Gen., and John O Harris, Asst. Atty. Gen., for the State.

SIMPSON Judge.

The appellant has been twice tried upon an indictment charging murder in the first degree.

The first trial resulted in a mistrial, to which we hereafter refer. The second trial eventuated in a verdict of guilty of manslaughter in the first degree, with punishment of ten years' imprisonment.

Consistent with our duty in such cases, we have scanned the record for error, but find that only those points urged upon our consideration by counsel for appellant merit separate treatment, so we confine discussion to them.

The first and principal contention for error is that, on account of the attempted rendition by the jury in the first trial of an abortive and irregular verdict which the trial court refused to accept and which superinduced the order of mistrial, the defendant had been thereby either (1) acquitted and discharged altogether, or (2) acquitted of murder and subject only to be tried in the second case for the lesser offenses embraced in the charge, i. e., manslaughter, etc.

The transpiration of events (pertinent) in the first trial is catalogued in the brief by able counsel for appellant, towit "The defendant was tried on March 10, 11, 12 and 13, 1941, and on the last day the jury returned into court the following verdict: 'We the jury find the defendant guilty of manslaughter in the first degree and recommend the mercy of the court.' This verdict was read in open court and thereupon the court sent the jury back to fix the punishment and the jury finally reported to the court they were unable to agree on the punishment. Thereupon, the court, without the consent of the defendant, ordered that mistrial be entered; the jury discharged and the cause continued."

The following June, the case was retried, resulting in the present verdict of manslaughter in the first degree and the assessment of punishment of ten years in the penitentiary, as stated aforesaid.

Succinctly, the query is, did the abortive performance of the first jury in attempting to return the improper verdict effect either (1) the discharge of the defendant, or (2) his acquittal of the degrees of homicide, higher than that stated in this irregular verdict.

The defendant asseverates the affirmative, but we think the authorities (cited in brief and argument by the learned Assistant Attorney General) are definitely opposed to this view. Ex parte Tanner, 219 Ala. 7, 121 So. 423; Washington v. State, 125 Ala. 40, 28 So. 78; Gunter v. State, 83 Ala. 96, 105, 106, 3 So. 600; Foster v. State, 88 Ala. 182, 185, 7 So. 185.

The following excerpt from Gunter v. State, supra, is decisive: "The true rule was held to be, that the discharge of a jury, without legal necessity or consent, which will operate as an acquittal, is a discharge before the rendition of the verdict by the jury; and that a discharge after a defective verdict, on which judgment had been erroneously pronounced, was not such jeopardy as would prevent the defendant from being put on trial again upon reversal of the judgment on appeal at his instance."

In the present case, the situation was less favorable to the view urged by appellant, for the reason that no "judgment had been (was) erroneously pronounced" in response to the irregular verdict.

The trial court, here, acted, with reference to this first attempted verdict, in the only manner possible and as the decisions of our Supreme Court have dictated, i. e., refused to receive the verdict and directed the jury to return a proper one in compliance with his instructions. Ex parte Tanner, supra, 219 Ala. page 8, 121 So. page 424. As stated there (Tanner) regarding a similar situation: "The court, having directed the jury to fix the punishment, should have refused to receive the verdict without a compliance with that direction (Bates v. State, 170 Ala. 26, 54 So. 432; Washington v. State, 125 Ala. 40, 28 So. 78)." This the trial court did, is what he should have done, and all he could do. There is nothing to the point of jeopardy.

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