Scott v. State
| Decision Date | 14 January 1892 |
| Citation | 10 So. 505,94 Ala. 80 |
| Parties | SCOTT v. STATE. |
| Court | Alabama Supreme Court |
Appeal from city court of Montgomery; THOMAS M. ARRINGTON, Judge.
Indictment against Aleck Scott for carrying a concealed pistol. Verdict of guilty, and judgment thereon. Defendant appeals. Affirmed.
Wm. L. Martin, Atty. Gen., for the State.
At the October term, 1885, the defendant was indicted for the offense of carrying a concealed pistol. He was arrested in Jefferson county, of this state, in the month of July, 1891 and, in default of bail, the sheriff of that county committed him to jail. Upon the order of the judge of the city court of Montgomery he was removed to the jail of the county of Montgomery, and there held until put upon his trial for the offense for which he was indicted. The defendant moved to strike the cause from the docket, upon the ground "that the cause was commenced at the October term, 1885, and a capias was regularly issued, and returned, 'Not found;' and that nothing further was done in said cause until the 5th day of September, 1890, when an alias capias was issued, and said capias was executed by arresting the defendant," etc.; and "that said cause has been discontinued." The motion was overruled and the defendant put upon trial upon the plea of not guilty. When the evidence was introduced and closed, the court charged the jury, if they believed the evidence, to find the defendant guilty.
After a capias, has issued for two terms, and returned "Not found," the solicitor may, by leave of the court, withdraw and file the indictment, with leave to reinstate the same when the ends of justice require such reinstatement. Crim. Code, § 4387. This provision is not mandatory, and, if deemed advisable, the cause may remain on the docket. The mere failure of the clerk in the performance of his ministerial duty to issue process will not operate a discontinuance, of which the defendant can take advantage. This rule was declared as early as the case of State v. Drinkard, 20 Ala. 13.
The evidence shows that "an officer, with a warrant for the arrest of another person, went out where the defendant lived in search of the person named in the warrant, and, while in search of him, the defendant, with his hands in his pocket rubbed up against the officer several times; whereupon the officer, with the assistance of another, caught the defendant's hands, and took them out of his pockets, and that...
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Banks v. State
... ... illustrate the various methods by which evidence may be ... secured in violation of the legal rights of accused ... persons." 136 Am. St. Rep. 136 ... To the ... foregoing may be added the several cases from this court of ... Shields v. State, supra; Scott v. State, 113 Ala ... 64, 21 So. 425 (unlawful search); French v. State, ... 94 Ala. 93, 10 So. 553 (lawful arrest); Scott v ... State, 94 Ala. 80, 10 So. 505 (unlawful arrest); ... Chastang v. State, 83 Ala. 29, 3 So. 304 (under ... legal arrest); Sewell v. State, 99 Ala. 183, 13 ... ...
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Ex parte State ex rel. Atty. Gen.
...account of inaction with respect to it by the court or the officer prosecuting for the State. Drinkard v. State, 20 Ala. 9; Scott v. State, 94 Ala. 80, 10 So. 505; Smith v. State, 149 Ala. 53, 43 So. 129; 6 Alabama Digest, Criminal Law, k303. We are not here confronted with the situation wh......
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State v. Peeler
...Laws. The quoted statutes require the issuance of process as a ministerial duty. See Drinkard v. State, 20 Ala. 9, text 13; Scott v. State, 94 Ala. 80, 10 So. 505; Cyc. 378. It is contended that as a capias or warrant was not issued to the sheriff or other proper officer on either informati......
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