Ex parte Spelce
| Decision Date | 26 March 1925 |
| Docket Number | 8 Div. 723 |
| Citation | 103 So. 705,212 Ala. 559 |
| Parties | Ex parte SPELCE. v. STATE. SPELCE et al. |
| Court | Alabama Supreme Court |
Certiorari to Court of Appeals.
Petition of George Spelce for certiorari to the Court of Appeals to review and revise the judgment and decision of that court in the case of Spelce et al. v. State, 103 So. 694. Writ denied.
Lanier & Pride and Douglass Taylor, all of Huntsville, and J.F Thompson, of Birmingham, for petitioner.
Harwell G. Davis, Atty. Gen., opposed.
Defendant interposed a plea of former jeopardy. The state's demurrer was sustained. Defendant complains of this ruling as error and insists that the sufficiency of the plea should be determined on the facts therein alleged. The substance of the plea was that the jury on a former trial had been discharged without a verdict, and that the order for such discharge failed to show a sufficient reason therefor. On the day on which the plea was filed, the same being a day of the term at which the former trial had been had, the judge of the circuit who had presided at the former trial, acting ex mero, amended the bench note so as to make it show beyond peradventure a sufficient legal and constitutional reason for the discharge of the jury on the former trial, and, thereupon, the demurrer to defendant's plea was sustained, though, as yet, the minute entry showing the amendment had not been written by the clerk. It may be conceded that there was technical error in this ruling against the plea, for, as defendant contends the sufficiency of the plea was determinable on the facts alleged therein and without reference to facts aliunde. The Court of Appeals was of opinion that the ruling in question if error, was error without injury for the reason that "if he [defendant] were given another trial, he would be confronted by the minute entry" showing the amendment of the order discharging the jury. We concur in the opinion that the trial court had the right during the term, ex mero, to amend the bench note to make it speak the truth and that the trial court might well proceed on the assumption that in due time the minutes would be made to show the order as amended. We also concur in the ruling to this effect, in substance that, if there was error in the trial court's ruling on the demurrer, it could avail defendant nothing; this for the reason, as the matter appears to us, that the court knew its own records and therefore knew...
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Woods v. State
...State, 7 Port. 187 (1838); McCauley v. State, 26 Ala. 135 (1855); Spelce v. State, 20 Ala.App. 412, 103 So. 694, cert. denied, 212 Ala. 559, 103 So. 705 (1924). It is often stated that the granting of a mistrial is within the sound discretion of the trial judge. 7 Alabama Digest, Criminal L......
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...not prejudiced in his substantial rights by the action of the court in denying the pleas without submitting them to a jury. Spelce v. State, 212 Ala. 559, 103 So. 705; Mikell v. State, supra; Sup.Ct. Rule 45, Code 1940, Tit. 7 Appendix.' Inman v. State, 39 Ala.App. 496, 104 So.2d We do not ......
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...no defense. There can be no injury from the rejection of a plea, which we know could not have been sustained. * * *' In Ex parte Spelce, 212 Ala. 559, 103 So. 705, the trial court committed a 'technical error' in sustaining a demurrer to defendant's plea of former jeopardy, and this court h......
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Shiflett v. State
...not prejudiced in his substantial rights by the action of the court in denying the pleas without submitting them to a jury. Spelce v. State, 212 Ala. 559, 103 So. 705; Mikell v. State, supra; Sup.Ct. Rule 45, Code 1940, Tit. 7 The evidence presented by the State was to the effect that the a......