Prince v. State

• Court: Supreme Court of Alabama
• Citation: 37 So. 171,140 Ala. 158
• Parties: PRINCE v. STATE.
• Decision Date: 19 May 1904

37 So. 171

140 Ala. 158

PRINCE
v.
STATE.

Supreme Court of Alabama

May 19, 1904

Appeal from Circuit Court, Marengo County; A. H. Alston, Judge.

Albert Price was convicted of unlawfully or wantonly killing stock, and appeals. Reversed.

The indictment was signed by "Benjamin F. Elmore, Solicitor of the First Judicial Circuit of Alabama." It was indorsed "A true bill," and was signed by the foreman of the grand jury. The defendant demurred to the indictment upon the ground that, while it purported to be signed by Benjamin F. Elmore, it was not, as a matter of fact, signed by him, but the name "Benjamin F. Elmore" signed to said indictment was written by W. C. Harrison, Jr., and not by Benjamin F. Elmore. At the bottom of this demurrer there was the following statement, which was signed by the defendant's attorney: "And the defendant pleads the above also in abatement to said indictment." The demurrer was overruled, but the judgment entry does not show that the plea in abatement was passed upon.

The bill of exceptions recites that after the state, by its solicitor, had announced ready for trial, and the defendant also announced ready for trial, the court proceeded to and did impanel a jury to try the case against this defendant; that said jury so impaneled was accepted by the state, and was also accepted by the defendant; that "after said jury was so accepted by the state and the defendant, and before the indictment was read to the jury, and without the defendant making any objection to the action of the court, the court laid the case over for the purpose of looking up and getting the local law for the stock districts, and called another case, which other case proceeded to trial by said jury, or a part thereof, which had been accepted by this defendant. After the trial of said other case, the case of this defendant was again called for trial, whereupon the defendant moved the court to discontinue said prosecution against the defendant." The ground of this motion to discontinue the prosecution was that the announcement by the state and the defendant as being ready for trial and the impaneling of the jury for the trial of the case amounted to placing the defendant in jeopardy, and the subsequent passing of the case worked a discontinuance. This motion was overruled, and the defendant duly excepted. After the impaneling the jury a second time, the defendant pleaded not guilty, and filed a special plea of former jeopardy, setting up the facts as above stated. The solicitor for the state moved the court to strike this plea from the file upon the ground that it was filed too late. This motion was sustained, the plea was stricken from the file, and the defendant duly excepted.

It was shown by the evidence that the defendant killed three cows, the property of J. S. Ryall, by shooting them with a gun; that said cows were killed while trespassing upon a growing crop of the defendant; that the defendant's crop was cultivated within a stock law district in Marengo county. The defendant, as a witness in his own behalf, testified that at the time of shooting the cows they were trespassing upon and eating up his crop of cotton; that he shot them with his single-barrel muzzle-loading gun; "that he shot two of them at one time, killing one and striking another; that the one he struck at the first shot ran off about 200 yards, but after the first shot he reloaded his gun, and shot and killed another cow at the same place; that he then reloaded his gun, and a short time thereafter--about 15 minutes--he went in the direction of the cow which had run off, and...