Hanson v. State

• Decision Date: 25 February 1936
• Docket Number: 7 Div. 145
• Citation: 168 So. 698,27 Ala.App. 147
• Parties: HANSON v. STATE.
• Court: Alabama Court of Appeals

168 So. 698

27 Ala.App. 147

HANSON v. STATE.

7 Div. 145

Court of Appeals of Alabama

February 25, 1936

Rehearing Denied March 24, 1936

Appeal from Circuit Court, Etowah County; Alto V. Lee, Judge.

John Hanson was convicted of unlawfully manufacturing whisky, and he appeals.

Affirmed.

Certiorari denied by Supreme Court in Hanson v. State (7 Div 382) 168 So. 700.

McCord & McCord, of Gadsden, for appellant.

A.A Carmichael, Atty. Gen., for the State.

SAMFORD Judge.

The defendant was indicted on a charge of unlawfully manufacturing whisky. To this indictment he interposed a plea of former jeopardy, as follows: "He ought not to be required to answer this indictment and that the State ought not to prosecute the same against him, because at the Spring Term of 1932 of the Circuit Court of Etowah County, Alabama on, to-wit, the 4th day of April 1932, he was charged and put upon trial under an indictment, a copy of which is attached hereto and made a part hereof with leave of reference and marked Exhibit 'A'; that at the trial, hearing, and consideration as to said offense, the defendant was acquitted and discharged; and the defendant says that he is now charged in this indictment of this offense, which is based upon the same matter and transactions and the same act or acts as that for which he was tried and acquitted as aforesaid in the first indictment. All of which the defendant is ready to verify and prays that he be discharged in the present indictment."

Exhibit A, which was made a part of the plea, is as follows: "The Grand Jury of said County charges that before the finding of this indictment John Hanson, whose name is unknown to the Grand Jury otherwise than as stated, unlawfully and with malice aforethought, killed Oscar Johnson by shooting him with a gun or pistol, contrary to law and against the peace and dignity of the State of Alabama." The court properly sustained the state's demurrer to this plea. There is no such relation between the crime here charged and the charge of murder set out in the plea as would sustain a plea of former jeopardy. The two are separate and distinct offenses.

After the venire had been qualified by the court as competent jurors, the solicitor was permitted, over objection by defendant, to ask of the panel: "How many of them (the jury) were present and tried this defendant, John Hanson, on the 4th day of April, 1932, in which he was charged and put upon trial under an indictment for murder?" This was a matter within the sound discretion of the court, and in the absence of abuse, which does not here appear, will not be reviewed on appeal. Jarvis v. State, 138 Ala. 17, 34 So. 1025; Lundy v. State, 91 Ala. 100, 9 So. 189.

At an isolated spot, and in a wood, this defendant and others were at a still where whisky was being manufactured. At the time and place, one of the officers engaged in the raid was killed by a gunshot wound fired by some one of the parties there at the still. The defendant, armed with a shotgun, was standing guard and on watch some yards away. On the approach of the officers this defendant gave the alarm and ran towards the still. After the alarm was given by defendant and the officer who had gone on towards the still was in the bushes, where the still was located, a shot was fired, and when the other officer came up he found Johnson, the officer who had gone ahead, lying near the still fatally...