McCart v. State

• Decision Date: 17 April 1973
• Docket Number: 4 Div. 165
• Citation: 50 Ala.App. 387,279 So.2d 558
• Parties: James McCART v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 558

279 So.2d 558

50 Ala.App. 387

James McCART v. STATE.

4 Div. 165.

Court of Criminal Appeals of Alabama.

April 17, 1973.

Rehearing Denied May 15, 1973.

J. Fletcher Jones, Andalusia, for appellant.

William J. Baxley, Atty. Gen., and Samuel L. Adams, Asst. Atty. Gen., for the State.

PER CURIAM.

The appellant was tried under an indictment which charged him with the offense of assault with intent to murder. Before he entered a plea of not guilty to the indictment, he filed pleas of autrefois acquit and former jeopardy setting up the fact that he had previously been tried in the Circuit Court of Covington County under the same indictment and had been convicted and sentenced for the offense of assault and battery; and that on motion of the appellant said judgment of conviction and sentence had been set aside and the appellant had been granted a new trial on the ground that one of the jurors selected to try him had been convicted for a felony and had failed to make that fact known on inquiry by the trial judge during the qualification of the jury, and that such fact was not known to the State or the appellant at said time. Evidence was taken on said pleas and clearly shows the truth of the facts set out in said pleas. The appellant took the position in and by said pleas that he could not again be put to trial for the offense of assault with intent to murder or any offense greater than the offense of assault and battery under said indictment. The evidence and said pleas were submitted to the trial judge and in ruling thereon he stated:

'It is the ruling of this Court that the disqualification of the juror Meeks, under the provision of Section 21, Title 30, Code of Alabama, was such disqualification as this defendant was never legally in jeopardy for the offense charged in the indictment, and therefore the plea of former acquittal does not lie to the indictment, and the defendant must answer the indictment and stand trial. And the plea of former jeopardy does not lie, and that the defendant is required to answer the indictment and stand trial.'

The effect of that ruling was to place the defendant on trial once again for the offense of assault with intent to murder and all lesser offenses embraced in the indictment.

The trial resulted in a jury verdict of guilty of assault and battery and the assessment of a fine against the defendant of $100.00.

The judgment entered by the trial court after reciting the verdict of the jury contains the following:

'It is therefore, considered and adjudged by the Court that the Defendant is guilty of Assault and Battery, and that the State of Alabama for the use of Covington County, have and recover of the Defendant the fine and cost of this prosecution for which let execution issue, and that the Defendant be imprisoned in the Covington County Jail for a period of six (6) months.'

The appellant again filed a motion for a new trial, which was overruled by the trial judge. Hence, this appeal. It is the contention of the appellant that error to reversal was committed by the trial court in denying and overruling his pleas of autrefois acquit and former jeopardy and placing him on trial for the offense of assault with intent to murder and all lesser offenses embraced in the indictment. That issue is clearly presented on this appeal.

The evidence offered in support of said pleas is without conflict and shows that the averments of said pleas are true; that the appellant had been previously tried under the same indictment; that the jury trying the appellant had returned a verdict finding the appellant guilty of assault and battery; that the appellant was adjudged by the court to be guilty of said offense and properly sentenced; and that on motion of the appellant said judgment was set aside and a new trial ordered for the reason stated above.

The attorney general in his brief contends that 'when a defendant appeals from a judgment of conviction he implicitly agrees in case of reversal to return to the stage of proceedings at which the reversible error occurred.' Under this contention it is urged in effect in said brief that, since the error connected with the disqualification of the juror came before the jury was struck and trial begun before the jury selected, when the first motion for a new trial was granted the case returned to the point of qualifying the jury, which is the point before the appellant was put in jeopardy.

In the case of Goolsby v. State, 44 Ala.App. 535, 215 So.2d 598, there were three counts in the indictment upon which the appellant was convicted charging burglary, grand larceny, and buying and receiving stolen property, respectively. The appellant prior to the trial which brought on the appeal, had without counsel entered a plea of guilty and judgment was entered, but that judgment was set aside. On the second trial, which resulted in the appeal, appellant Goolsby filed pleas of autrefois acquit, which were overruled. It is not clear from the opinion whether Goolsby on the first trial pled guilty to all counts or only to one of them or for what offense he was convicted. On the second trial, which resulted in the appeal, Goolsby was convicted and sentenced for burglary in the second degree. This Court in passing upon the pleas of autrefois acquit stated:

'When a defendant appeals from a judgment of conviction, he implicitly agrees in case of reversal to return to the stage of proceedings at which the reversible error occurred. A trial, after issue is joined, is of necessity treated as an indivisible unit.'

No authority was cited in the opinion upholding that statement at the point in the opinion where it appears. The Court in Goolsby further states:

'Under Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, Goolsby's first trial after the coram nobis judgment was a nullity because the court lacked one of its indispensable officers, an attorney for the defendant. We know that Gideon was retried--and acquitted.

'If Goolsby's first arraignment was void, so too was any nol prosse consequent thereon. Hence, on the second trial the cause would revert de novo to arraignment because this was a severable point in the proceeding at which the former error infected judgment.'

Further in the Goolsby opinion the Court states:

'We see no application here of any potential pleas of former jeopardy even if the appellant were to have properly proved a former judgment of conviction of second degree burglary; and, with an implicit acquittal of grand larceny and receiving stolen goods, Bell v. State, 48 Ala. 684, would not apply here. Brooks v. State, 42 Ala.App. 69, 152 So.2d 441, does.'

In Brooks v. State, 42 Ala.App. 69, 152 So.2d 441, the appellant, John D. Brooks, filed a petition for writ of habeas corpus in the Circuit Court of Montgomery County seeking his release from Kilby Prison. The opinion states:

'The petitioner alleged that he had been placed twice in jeopardy; that on February 25, 1959, he was convicted for the identical offense which was the basis of the charge of which he was convicted on November 21, 1962. Petitioner's Exhibit 'A' shows a conviction on February 25, 1959, after a plea of guilty.

'If, as appears in the Attorney General's brief in the 'statement of the case,' the court granted a petition for writ of error coram nobis, set aside the judgment of conviction on the plea of guilty and granted a new trial, the defendant was estopped from pleading former jeopardy based on the action of the court in granting his petition for the writ and ordering a new trial . . ..'

It does not appear from the opinion in the Brooks case what the grounds were for granting the petition for writ of error coram nobis as to the 1959 conviction. If it was granted upon some ground which would cause the conviction to be void or a nullity, the opinion applied to the Goolsby case, supra, but there was no question in Goolsby of an acquittal of any offense. The Goolsby case is based upon a factual situation and a holding that the first trial was a nullity.

In Reynolds v. State, 1 Ala.App. 24, 55 So. 1016, the Court said:

'The defendant's contention that, the jury in the first trial having found defendant guilty of murder in the second degree, he was thereby acquitted of murder in the first degree is untenable, in that the record shows that such verdict was set aside on the motion of the defendant as void, because of the unconstitutionality of the jury law, under the provisions of which the jury to try the case was drawn and selected on that trial . . .'

In Weston v. State, 63 Ala. 155, the Court states:

'Nor can it be held, in such a case, that the proceedings had gone so far that defendant had been put in jeopardy, and should not, therefore, be subjected to trial again. 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.. . .'

In Reynolds, supra, the Court states:

'. . . The verdict and judgment having been set aside at the instance of the defendant, he estopped himself from pleading former jeopardy for anything growing out of that trial. . . .'

That statement of the law does not say he estopped himself from pleading autrefois acquit. If the trial is void or a nullity he has not been in jeopardy and in such a case could again be put to trial if the conditions which made it void or a nullity were removed.

If a new trial is granted or a judgment of conviction is reversed on appeal on grounds other than that said trial is void or a nullity, a defendant could plead autrefois acquit to any offense for which there was an implicit acquittal, but could not successfully plead former jeopardy to the offense, the conviction for which was set aside or reversed. Otherwise the entire line of cases would have to be set aside which hold that if there is embraced in an indictment more than one...