Coburn v. State

Decision Date16 May 1907
Citation44 So. 58,151 Ala. 100
CourtAlabama Supreme Court

Appeal from City Court of Bessemer; William Jackson, Judge.

Hamilton Coburn appeals from a conviction. Reversed and remanded.

W. K Smith, P. T. Huey, Pinkney Scott, and Ray Rushton, for appellant.

Alexander M. Garber, Atty. Gen., for the State.


The defendant in this case was tried and convicted of the crime of grand larceny; the subject of the larceny being chairs and a table, alleged to be worth a little over $5, which were taken from a warehouse.

It appears from the record that the defendant interposed the plea of autrefois acquit, which is set out in the statement of the case; that "no motion, demurrer, replication, or any objection, by any plea or paper," was interposed but the court on its own motion "overruled" the plea, stating that the same was not good, and stating what had been the proceedings in the city court of Bessemer, when the case was before it, as stated in the plea. When a plea is regularly interposed in a case, it is subject to either a demurrer or a motion to strike from the records, and, if neither is interposed, issue must be taken on the plea, and it goes before the jury on the question of fact. The plea in this case was defective, and subject to demurrer; but it was the right of the pleader to have those defects pointed out and then to amend his plea. We know of no rule by which the court can, of its own motion, "overrule" a plea on facts within the personal knowledge of the judge, without evidence properly produced before the court. Andrews' Stephen's Pleading, p. 136; 16 Ency. Pl. & Pr. p. 582 583; Lovett v. State, 4 S. E. 912, 80 Ga. 255.

The defendant then interposed a plea in abatement, alleging first, that the foreman of the grand jury failed to subscribe his name to the fact that said indictment was a true bill; and, second, that the name of the foreman was merely printed on the indictment, and not signed. There does not seem to have been any demurrer or motion to strike this plea either; but the court "overruled" the plea, and "refused to hear or entertain the said plea further." In addition to what has been said in regard to the first plea, the first ground mentioned in said plea was a good cause for abating the suit, or, more properly, quashing the indictment (Code 1896, § 5039); and, while the court is of the opinion that the plea was demurrable as to the...

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19 cases
  • The State v. Douglas
    • United States
    • Missouri Supreme Court
    • January 6, 1926
    ... ... foreman, are directory merely. R. S. 1919, sec. 3885; ... State v. Mertens, 14 Mo. 94; State v ... Burgess, 24 Mo. 381; State v. Brooks, 94 Mo ... 121; State v. Elliott, 98 Mo. 150; State v ... Orrick, 106 Mo. 111; 14 R. C. L. 168; Coburn v ... State, 151 Ala. 100. (b) The courts, while holding that ... the omission to add the words "a true bill" where ... the indictment is signed by the foreman cannot be attacked ... after verdict, recognize the right to attack the validity of ... such an indictment before trial by motion to ... ...
  • Doss v. State
    • United States
    • Alabama Supreme Court
    • June 27, 1929
    ... ... demurrer, yet, if the pleas are manifestly insufficient, and ... no answer to the indictment, and the court properly so ... decides, we will not reverse its judgment. This court seems ... to have entertained a different view in Turk v ... State, 140 Ala. 112, 37 So. 234, and Coburn v ... State, 151 Ala. 100, 44 So. 58, 15 Ann. Cas. 249 ... But ... whether we apply the rule announced in the James Case, or the ... of the later cases treating the facts averred in the plea as ... true, as we must do on demurrer ... [123 So. 234] ... (Spivey et al. v. State, ... ...
  • Billups v. City of Birmingham
    • United States
    • Alabama Court of Criminal Appeals
    • October 3, 1978
    ...the personal knowledge of the judge, no demurrer, motion, or pleading being interposed thereto and no evidence produced. Coburn v. State, 151 Ala. 100, 44 So. 58 (1907); Evans v. State, 24 Ala.App. 390, 135 So. 647 (1931). Yet in overruling a plea of former jeopardy without a jury, the tria......
  • Racine v. State
    • United States
    • Alabama Supreme Court
    • November 29, 1973
    ... ... This principle is stated and applied in Coburn v. State, 151 Ala. 100, 44 ... So. 58; Evans v. State, 24 Ala.App. 390, 135 So. 647; Berland v. City of Birmingham, 36 Ala.App. 488, 60 So.2d 377; Carter v. State, 43 Ala.App. 178, 184 So.2d 847, and Harmon v. State, 48 Ala.App. 521, 266 So.2d 325 ...         In his brief, defendant ... ...
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