Graham v. State
| Decision Date | 16 June 1914 |
| Docket Number | 248 |
| Parties | GRAHAM v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, St. Clair County; J.E. Blackwood, Judge.
Thomas D. Graham was convicted of assault and battery, and he appeals. Affirmed.
M.M. & V.H. Smith, of Pell City, for appellant.
R.C. Brickell, Atty. Gen., and T.H. Seay, Asst Atty. Gen., for the State.
The defendant was indicted for an assault with intent to murder and was convicted of an assault and battery, whereupon he moved in arrest of judgment, setting up as grounds facts relied upon as showing former jeopardy.
The facts set up as grounds for the motion are without contradiction and show that, prior to the finding of the indictment upon which he was tried, the defendant had a hearing before the county judge on an affidavit charging him with an assault with intent to murder and was bound over under bond to await the action of the grand jury. The offense charged in the indictment and the affidavit grew out of the same transaction, and, the jury having found the defendant guilty of an assault and battery (a misdemeanor), it is urged that, as the county judge had final jurisdiction to try and determine misdemeanor cases on the merits, he had no jurisdiction to bind the defendant over to answer the charge against him, and that, as it was the duty of the county judge to try and render final judgment in the case, the defendant has been in jeopardy.
In the first place, it is an answer to this contention that former jeopardy must be specially pleaded (Mooring v State, 129 Ala. 66, 29 So. 664; DeArman v State, 77 Ala. 10); and, in the second place, the charge against the defendant in the affidavit was one denounced as a felony in which the county judge only had jurisdiction to sit as a committing magistrate, and was not a court of competent jurisdiction to try and determine on its merits to a final conclusion the charge preferred--a felony, of which it had no final jurisdiction. It is the charge that determines the jurisdiction of the court. The cases cited and quoted from by appellant (State v. Blevins, 134 Ala. 213, 32 So. 637, 92 Am.St.Rep. 22, and Ex parte Pruitt & Harper, 99 Ala. 225, 13 So. 317) but tend to illustrate what we have said. The affidavits or complaints upon which the defendants were tried in those cases charged offenses that were misdemeanors which the judge or magistrate had jurisdiction to try and render final judgments in.
No attempt is shown to have been made to subdivide or split up the crime charged against the defendant, and prosecute him for different crimes based on the...
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