Coburn v. State
| Decision Date | 16 May 1907 |
| Citation | 44 So. 58,151 Ala. 100 |
| Parties | COBURN v. STATE. |
| Court | Alabama 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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