Barber v. State

Citation151 Ala. 56,43 So. 808
PartiesBARBER v. STATE.
Decision Date02 April 1907
CourtAlabama Supreme Court

Rehearing Denied May 6, 1907.

Appeal from Circuit Court, St. Clair County; John Pelham, Judge.

Frank Barber was convicted of murder in the first degree, and he appeals. Affirmed.

The defendant was charged with the murder of a peddler named Madnick, and convicted and sentenced to life imprisonment. A former trial of this case was had at Pell City, in St. Clair county; the court there being held under an ordinance adopted by the constitutional convention held void in the former appeal in this cause, and under an act held void for want of notice of intention to apply. This former conviction is made a plea and interposed as defense to this action. The plea is as follows: "Comes the defendant, Frank Barber, by his attorneys, and pleads and says that he has been once in jeopardy for the offense now charged against him in this court, on the 7th day of June 1904, in the circuit court of St. Clair county, Alabama. The defendant was in due form of law arraigned and pleaded not guilty of said offense, and was by the state of Alabama in due form of law placed on his trial before a jury of his county. And defendant further says that the witnesses were examined in due form of law before the said court and jury, and that the counsel for the state and the defendant addressed the court and jury in due form of law; that the court charged the jury relative to the premises contained in the indictment, and that said jury then according to law retired to deliberate on their verdict; and that on the 13th day of June, 1904, said jury returned into court and rendered a verdict in said cause, upon which verdict, which was in due form of law, said court then and there did render and enter judgment and sentence in all respect and accordance with and as required by law in such cases. Defendant says that said verdict, judgment, and sentence was for and on account of the identical charge and offense as alleged and set forth in the indictment and charge now under investigation in this case, and for which he is now held; and said court then and there had jurisdiction to hear and try defendant for said offense, all of which proceedings sufficiently appear by the records of said court, which are evidence thereof. Wherefore defendant prays judgment, and that by the court he be discharged from the said premises in the said indictment specified." It seems that this plea of former jeopardy and the plea of not guilty were interposed at the same time. The solicitor thereupon moved the court to strike the plea of former jeopardy, because it came too late and because it came after the plea of not guilty had been interposed. This being overruled, he demurred to the plea first, because it was not sworn to; and second, that it does not sufficiently appear from the plea that said former trial was had by and before a court having jurisdiction of the person of the defendant, and it does not sufficiently appear from said plea that said trial was by and before a court having jurisdiction of the offense charged, and it does not sufficiently appear that said former trial was had at a time authorized by law. It does not appear that said former trial was at a place authorized by law. It does not appear that the indictment was good and sufficient. These demurrers being overruled, the state filed a couple of general replications setting forth that the former indictment, upon which the former trial was had, was void, and that he had not been tried or placed on trial under any valid indictment since and two special replications (replications 4 and 5), setting up that the indictment was returned and the trial had at Pell City at a time and under circumstances which rendered the indictment void and the trial and judgment void, which facts and circumstances are fully set forth in the replication. These demurrers being overruled, the defendant was put to his trial, and the issues submitted to the jury were the pleas of not guilty and former jeopardy. The judgment entry was the usual judgment entry in such cases, except that it omitted a formal entry of a finding on the special plea in former jeopardy in favor of the state.

The evidence tended to show that Barber did the killing after lying in wait for the deceased, and, after killing him, dragged his body out of the road and took what money he had on his person. There was also evidence tending to show confession. The evidence for the defense tended to show an alibi. The following charges were refused to the defendant: "(A) If the jury believe all the evidence in this case, they must find the issue in favor of the defendant on his plea of former jeopardy." (B) General affirmative charge, with hypothesis. "(X) The court charges the jury that if, from all the evidence, the jury set aside beyond all reasonable doubt that the defendant did take the life of deceased by shooting him with a gun, or by shooting him with a pistol, yet if, from all the evidence, the jury has a reasonable doubt as to whether or not the defendant so took the life of deceased under the facts, circumstances and details as alleged by the evidence as offered by the state, that the defendant on the day of the killing told Preston McCrory the killing occurred, or under the facts, circumstances, and details as it is alleged by the evidence as offered by the state, that defendant related and stated to the state's witness in the state of Arkansas on the 17th day of May, 1904, to the state's witness James Bowline, then, under all the evidence, the jury cannot find the defendant guilty of an offense higher than murder in the second degree." The defendant was convicted of murder in the first degree, and sentenced to be imprisoned in the penitentiary for the period of his natural life.

Inzer &amp Montgomery, Smith & Herring, Robert N. Bell, and James A. Embry, for appellant.

Alexander M. Garber, Atty. Gen., and Borden H. Burr,...

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23 cases
  • Rieber v. State
    • United States
    • Alabama Court of Criminal Appeals
    • June 17, 1994
    ...774 (1966); Aldridge v. State, 278 Ala. 470, 179 So.2d 51 (1965); Buford v. State, 214 Ala. 457, 108 So. 74 (1926); Barber v. State, 151 Ala. 56, 43 So. 808 (1907). "It would be a sad commentary upon the vitality of the judicial process if an accused could render it improper by his own choi......
  • Whitehead v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 27, 1999
    ...774 (1966); Aldridge v. State, 278 Ala. 470, 179 So.2d 51 (1965); Buford v. State, 214 Ala. 457, 108 So. 74 (1926); Barber v. State, 151 Ala. 56, 43 So. 808 (1907). `It would be a sad commentary upon the vitality of the judicial process if an accused could render it improper by his own choi......
  • Durden v. State
    • United States
    • Alabama Court of Criminal Appeals
    • June 30, 1980
    ...774 (1966); Aldridge v. State, 278 Ala. 470, 179 So.2d 51 (1965); Buford v. State, 214 Ala. 457, 108 So. 74 (1926); Barber v. State, 151 Ala. 56, 43 So. 808 (1907)." Appellant has contended that the affidavits and record indicate that the jury judge did not comply with § 12-16-6, Code of Al......
  • Rowe v. State
    • United States
    • Alabama Court of Criminal Appeals
    • August 13, 1993
    ...774 (1966); Aldridge v. State, 278 Ala. 470, 179 So.2d 51 (1965); Buford v. State, 214 Ala. 457, 108 So. 74 (1926); Barber v. State, 151 Ala. 56, 43 So. 808 (1907). 'It would be a sad commentary upon the vitality of the judicial process if an accused could render it impotent by his own choi......
  • Request a trial to view additional results

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