Foster v. State

• Decision Date: 08 January 1890
• Citation: 88 Ala. 182,7 So. 185
• Parties: FOSTER v. STATE.
• Court: Alabama Supreme Court

7 So. 185

88 Ala. 182

FOSTER v. STATE.

Supreme Court of Alabama

January 8, 1890

Appeal from circuit court, Conecuh county; JOHN P. HUBBARD, Judge.

Indictment against W. C. Foster and James M. Windham, charging them "with the purpose to hinder, delay, and defraud Bryant Johnson, who had a valid and lawful claim thereto, under a written instrument, lien created by law, for rent or advances, or other lawful or valid claim, verbal or written dial sell or remove personal property, consisting of one cow and calf and 900 pounds of seed cotton, of the aggregate value of $27; they, the said J. M. Windham and W. C. Foster having at the time the knowledge of the existence of such claim." On the first trial Windham was acquitted, and the jury returned a verdict against Foster, finding him "guilty of removing 500 pounds of seed cotton, valued at $12.50," and assessing a fine of $25 against him. This verdict was entered up in the judgment, as it is copied in the transcript, as a verdict of guilty against Foster finding the value of the property to be $12.50, and assessing a fine of $25 against him, and he thereupon confessed judgment for the fine and costs, with sureties; but this judgment was set aside at his instance, on a subsequent day of the term, and a new trial granted. On the second trial, as shown by the transcript, the defendant pleaded the former verdict and judgment as an acquittal (1) of the charge as to the cow and calf, and (2) of the entire charge, except as to the 500 pounds of the seed cotton. To each of these pleas the state replied the judgment granting a new trial on the defendant's motion, to which replication he demurred; but the court overruled the demurrers, and held that the former verdict and judgment constitute no bar to any part of the prosecution. Issue was then joined on the plea of not guilty and the defendant convicted. On the trial the state introduced secondary evidence of a mortgage for advances to make a crop during the year 1883, executed to the defendant by P. Lewis and Mrs. N. P. Reid, which seems to have been transferred by the defendant, "per Stallworth & Burnett, his attorneys, on the 1st of November, 1883, to George M. Leigh, and by said Leigh, November 6, 1883, to Bryant Johnson;" and adduced evidence showing that the defendant, after the transfer of this mortgage, had received and sold some of the property conveyed by it. The defense seems to have been that the cotton sold by the defendant, after the transfer of the mortgage, which was raised by said P. Lewis during the year 1883, was subject to a prior lien for rent, of which lien and claim he was the owner at the time he sold the cotton. Numerous exceptions were reserved by the defendant to the rulings of the court on the admissibility of evidence, and in the matter of charges given and refused, and he now appeals.

John Gamble and Watts & Son, for appellant.

W. L. Martin, Atty. Gen., for appellee.

STONE C.J.

When the case of the defendant was submitted to the jury on the first trial, he was placed or put in what the law calls "jeopardy." The case, at that stage, could not be lawfully taken from the jury, except in one of three ways: First, by a verdict of guilty or not guilty, rendered; second, by a failure of the jury to agree with the term allotted for the court, or some other legal ground supervenes, which renders their discharge a necessity; or, third, where, the jury having rendered no verdict, the case is taken from them by consent, and a mistrial had. In this case the jury did render what they obviously intended as a verdict, and the court received it, and discharged them. Judgment was subsequently arrested, on the ground of an imperfection in the verdict. Now, what the jury intended as a verdict was either a verdict or it was a nullity. If a nullity, then the jury was discharged before they had rendered their verdict, without any lawful excuse therefor, and without the consent of the accused. If we come to this conclusion, the prisoner having been once put in legal jeopardy, and the case taken from the jury without a verdict, and without authority of law, he could not again be put on trial for any offense charged in that indictment. In re Battle, 7 Ala. 259; 1 Brick. Dig. p. 455, § 110; Powell v. State, 19 Ala. 577; Hodges v. State, 8 Ala. 55; Allen v. State, 52 Ala. 391; Cook v. State, 60 Ala. 39.

We think, however, that the verdict was not a nullity, but was only incomplete or irregular. Dover v. State, 75 Ala. 40, and authorities cited. Allen v. State, 52 Ala. 391, holds that in such case the defendant should be held for further trial. Gunter v. State, 83 Ala. 96, 3 South. Rep. 600. If the jury return a verdict of guilty as to a part of the offense, or items of the offense, charged in the indictment, and say nothing in reference to the residue, "as to all which is not found the conclusion must be that the jury intended to acquit." 1 Brick. Dig. p. 518, § 986; Berry v. State, 65 Ala. 120.

The circuit court erred in overruling the demurrer to the stat'es replication, interposed to the defendant's plea of former acquittal, and in the charge given to the jury on that issue. The verdict in the first trial acquitted the defendant of all criminality in removing the cow and...