Parsons v. State

Decision Date16 January 1913
Citation60 So. 864,179 Ala. 23
CourtAlabama Supreme Court
PartiesPARSONS v. STATE.

Appeal from Tuscaloosa County Court; Henry B. Foster, Judge.

Dick Parsons was convicted of murder, and he appeals. Affirmed.

Rice &amp Vande Voort, of Tuscaloosa, for appellant.

R. C Brickell, Atty. Gen., and W. L. Martin, Asst. Atty. Gen., for the State.

SOMERVILLE J.

The defendant was convicted of the murder of Cal Parsons. On the trial he interposed pleas of former jeopardy along with his plea of not guilty. On motion of the solicitor the plea of not guilty was temporarily stricken from the file, and trial was first had on the jeopardy pleas. The issue being found against defendant on these pleas, the plea of not guilty was refiled, and the trial proceeded on its merits.

Under the established practice in this state, the issue of former acquittal, conviction, or jeopardy must be tried separately and in advance of the issue of not guilty; and in felony cases the defendant cannot waive the operation of the rule. State v. Nelson, 7 Ala. 610; Faulk v State, 52 Ala. 415; Moody v. State, 60 Ala. 78. It was not necessary to strike defendant's plea of not guilty for this purpose, but the practice pursued was in no sense prejudicial to defendant.

The defense of former jeopardy was presented by five separate pleas, of which we need only notice the last. This plea avers the following facts as constituting the former jeopardy relied on: Defendant was arraigned under an indictment charging him with the murder of John Gore by shooting him with a pistol, and also under the indictment in this case charging him with the murder of Cal Parsons by shooting him with a pistol, to both of which he pleaded not guilty. Thereafter, on October 11, 1911, he was placed upon trial before a jury, and on that trial counsel for the state presented to the jury both of said offenses; witnesses were duly examined as to both offenses; counsel for state and for defendant addressed the court and jury in due form as to both offenses; the court charged the jury relative to the offense of murdering John Gore, and on the following day, there being a verdict of not guilty, a judgment of acquittal of that offense was duly entered for defendant; up to the time the court charged the jury the latter were under the bona fide belief that they were sitting in judgment upon defendant for both of said offenses, and would have felt bound to render their verdict upon both of them. The plea concludes with the averment that "said court then and there had jurisdiction to hear and try defendant for said offense, all of which proceedings sufficiently appear by the records of said court, which are evidence thereof" (italics ours).

The court overruled the state's demurrers to the plea, and it is therefore unnecessary to pass upon the question of its sufficiency under statutory or common-law requirements. Issue was joined on the plea, and defendant placed in evidence the indictment charging the murder of John Gore, the minute entry showing arraignment and plea of not guilty under both indictments, and the judgment entry showing verdict and...

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24 cases
  • Simpson v. State
    • United States
    • Alabama Court of Criminal Appeals
    • December 6, 1977
    ...Appellant is correct in his contention that the question of his former jeopardy should have been submitted to a jury. Parsons v. State, 179 Ala. 23, 60 So. 864 (1913); Garsed v. State, 50 Ala.App. 312, 278 So.2d 761 (1973). However, the trial court's error in determining the former jeopardy......
  • Spears v. State
    • United States
    • Alabama Court of Criminal Appeals
    • April 15, 1994
    ...to direct a verdict for or against the state as the case may require. Brown v. State, 209 Ala. 490, 96 So. 475 (1923); Parsons v. State, 179 Ala. 23, 60 So. 864 (1913); Blevins v. State, 20 Ala.App. 229, 101 So. 478, cert. denied, 211 Ala. 615, 101 So. 482 Billups v. City of Birmingham, 367......
  • Billups v. City of Birmingham
    • United States
    • Alabama Court of Criminal Appeals
    • October 3, 1978
    ...to direct a verdict for or against the state as the case may require. Brown v. State, 209 Ala. 490, 96 So. 475 (1923); Parsons v. State, 179 Ala. 23, 60 So. 864 (1913); Blevins v. State, 20 Ala.App. 229, 101 So. 478, cert. denied, 211 Ala. 615, 101 So. 482 In declaring the mistrial "The jud......
  • Coleman v. State
    • United States
    • Alabama Court of Criminal Appeals
    • November 1, 1983
    ...of former jeopardy should be tried separately and in advance of the issue of not guilty, and the issue is for the jury. Parsons v. State, 179 Ala. 23, 60 So. 864 (1913). "However, where the evidence introduced shows without contradiction that the plea could not avail even had the issues bee......
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