Ex parte Spivey

• Decision Date: 09 January 1912
• Citation: 57 So. 491,175 Ala. 43
• Parties: EX PARTE SPIVEY ET AL.
• Court: Alabama Supreme Court

57 So. 491

175 Ala. 43

EX PARTE SPIVEY ET AL.

Supreme Court of Alabama

January 9, 1912

Certified Questions from Court of Appeals.

Petition by Hollan Spivey and others to be allowed bail. From a decree refusing bail, petitioners appealed to the Court of Appeals which certified questions to the Supreme Court. Questions answered.

Foster Samford & Carroll and Ball & Samford, for appellants.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

SIMPSON J.

This is an appeal from the decision of the chancellor on a petition to be allowed bail. The petitioners were indicted for murder in the first degree, and convicted of murder in the second degree. An appeal was taken to this court; the sole question being whether the court erred in sustaining the demurrer to a plea that the grand jury which found the indictment was not drawn "in the presence of the officers designated by law." This court reversed the case on the ground that said plea was good and that the demurrer should have been overruled. Spivey v. State, 57 So. 493.

No oral evidence was offered before the chancellor; the claim of the petitioners being that the record showed that the petitioners had been tried on an indictment charging murder in the first degree, and had been found guilty of murder in the second degree, which, under our decisions, operated as an acquittal of the crime of murder in the first degree, and entitled the petitioners to bail. It is familiar law that, in order to sustain a defense of former jeopardy, or former acquittal or conviction, it is necessary that the former proceedings had been upon a valid indictment, on which a conviction could have been legally had. 12 Cyc. 261, 265.

While it is true that in this case no issue was taken upon the facts alleged in the plea, yet the defendants asserted the truth of those facts, the state, by demurring to the plea confessed the truth of the allegations, and this court reversed the case, holding that the facts alleged, if true, established the insufficiency of the indictment, and, as a result, the judgment of conviction against the petitioners has been annulled. There are authorities to the effect that a party, having obtained the reversal of the judgment of conviction by setting up the invalidity of an indictment, cannot be allowed to secure a further benefit, by claiming that the judgment of conviction was valid, so as to entitle him to bail. He is estopped from asserting that the judgment of conviction was valid. 12 Cyc. p. 266b; Joy v. State, 14 Ind. 139, 152; People v. Meakim, 61 Hun, 327, 329-330, 15 N.Y.S. 917; United States v. Jones (C. C.) 31 F. 725, 728; State v. Meekins, 41 La. Ann. 543, 6 So. 822, 823.

It will be noticed, in connection with what will be further said, that this refers only to the judgment of conviction. In our case of Weston v. State, 63 Ala. 155, 157, the cause was called for trial, and after a jury had been impaneled, and a witness sworn and examined, it was found that there had been such irregularity in the selection of the grand jury as would cause a reversal of the judgment after verdict against the defendant, and the judge stopped the case, quashed the indictment, and ordered the case to be submitted to another grand jury. On the second trial this court held that the defendant had not been in jeopardy, saying: "A defendant is never in jeopardy, when the indictment against him is so invalid that a judgment upon it would be annulled on appeal, no matter what may be the stage of the prosecution, when, for that reason, it is quashed." (Italics supplied.)

In the case of Berry v. State, 65 Ala. 117, 122, two persons, B. and H., were jointly indicted for murder. H. was acquitted, and B. found guilty of murder in the second degree. B. appealed, and the case was reversed on account of the failure to organize the jury...