Moss v. State

• Decision Date: 03 April 1917
• Docket Number: 6 Div. 177
• Citation: 16 Ala.App. 34,75 So. 179
• Parties: MOSS v. STATE.
• Court: Alabama Court of Appeals

75 So. 179

16 Ala.App. 34

MOSS v. STATE.

6 Div. 177

Court of Appeals of Alabama

April 3, 1917

Rehearing Denied May 15, 1917

Appeal from Criminal Court, Jefferson County; A.H. Alston, Judge.

Andy Moss was convicted of murder in the second degree, and he appeals. Reversed and remanded.

The defendant in this case was tried in the criminal court of Jefferson county under an indictment charging him with murder in the first degree, in that he had killed Barton Haggerty by shooting him with a pistol. On the trial of the cause the defendant pleaded former jeopardy, which defense he set up in 18 different pleas. It appears from the judgment entry that the court sustained demurrers to all of these pleas except pleas 7, 17, and 18, and overruled demurrers to pleas 7, 17 and 18, but the demurrers are nowhere set out in the record.

The issue of former jeopardy was first submitted to the jury and, upon the evidence, the issue was found against the defendant's contention. Thereupon the trial proceeded to judgment and conviction, and there was verdict and judgment convicting the defendant of murder in the second degree and fixing his punishment at ten years in the penitentiary.

It appears from the bill of exceptions and the record that on the 1st day of February, 1912, the defendant was indicted for murder in the first degree for the alleged killing of George Cook. On the same date and by the same grand jury, he was indicted for murder in the first degree for the killing of Barton Haggerty. On the 25th day of January, 1913, the defendant was put on trial for the murder of George Cook, and after due trial was acquitted. The testimony tends to show and is practically without conflict, that at the time the deceased George Cook was killed, he was in a drug store at North Birmingham; that the defendant, who was passing by or approaching the drug store, fired four shots from a double action pistol in quick succession, all of which shots were fired at Cook. The deceased, Barton Haggerty, was an innocent bystander, unknown to the defendant, and had no interest in the controversy; but from all the testimony it appears that one of the bullets fired by the defendant struck Haggerty in the head and killed him. The other facts necessary to a decision in this case are sufficiently stated in the opinion.

Erle Pettus, of Birmingham, for appellant.

W.L Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen., for the State.

SAMFORD J.

There are no demurrers in the record assailing the pleas; hence assignments of error predicated on these rulings cannot be reviewed by this court. L. & N.R.R. Co. v. McCool, 167 Ala. 645, 52 So. 656; Wade v. State, 170 Ala. 33, 54 So. 171; Carland & Co. v. Burke (Sup.) 73 So. 10; 2 Mayf.Dig. 181, subd. 945.

On a plea of former jeopardy, the burden of proof is on the defendant to reasonably satisfy the jury of the truthfulness of the plea. The decisions as to the burden of proof in cases of self-defense do not apply to pleas of former jeopardy. Oakley v. State, 135 Ala. 34, 33 So. 693.

The defendant was entitled to, and in this case had, a separate trial on the issue tendered. Under the practice in this state, the issue is first submitted; and, if found against the defendant, the trial proceeds. The jury is selected to pass upon the issues in the case, and the plea of former jeopardy is one of the issues, and it is not necessary that a new jury should be drawn for the purpose of passing upon the other issues. Parsons v. State, 179 Ala. 23, 60 So. 864; Barber v. State, 151 Ala. 56, 64, 43 So. 808, and authorities there cited.

Upon the submission of the issue of former jeopardy as submitted to the jury, the defendant presented two theories, both of which are raised by charges asked in writing. The first theory is that the same shot that killed Cook killed Haggerty, and, if this is so, and ...