Parsons v. State

• Decision Date: 16 January 1913
• Citation: 60 So. 864,179 Ala. 23
• Court: Alabama Supreme Court
• Parties: PARSONS v. STATE.

60 So. 864

179 Ala. 23

PARSONS v. STATE.

Supreme Court of Alabama

January 16, 1913

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 casesthe 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 judgment of acquittal of the...