Scott v. State

• Decision Date: 02 February 1897
• Citation: 21 So. 425,113 Ala. 64
• Parties: SCOTT v. STATE.
• Court: Alabama Supreme Court

21 So. 425

113 Ala. 64

SCOTT v. STATE.

Supreme Court of Alabama

February 2, 1897

Appeal from circuit court, Madison county; H. C. Speake, Judge.

James Scott was convicted for carrying a pistol concealed about his person, and appeals. Reversed.

The defendant pleaded former jeopardy, and issue was joined upon said plea, which was submitted to the jury upon the following agreed statement of facts: "The defendant had two indictments pending against him, one for carrying a concealed pistol, No. 5,203, and one for an assault with intent to murder, No. 5,211. When the case against defendant was called, on February 26, 1896, he was called around by name without designating which case was to be tried. The state announced ready, and defendant's attorneys asked the court for time in which to take depositions of absent witnesses, whereupon the court put the defendant on showings for his witnesses, against his objection and exception. The defendant's attorneys then prepared showings for said witnesses, and submitted them to the solicitor. Court then adjourned, and next morning, February 27th, the solicitor announced that he would admit the showings; and a jury was then ordered by the court to take their places in the box and a jury was then selected to try defendant. After several challenges on both sides, the solicitor and defendant's attorneys announced that they were satisfied with the jury. The solicitor then read to the jury the indictment No. 5,203 (the case for carrying concealed weapons). *** The defendant declined to plead to this indictment, but contended that he had been called for trial in the case of an assault with intent to murder, and had been put on showings in that case and insisted upon a trial in that case. The court told the solicitor that the case he called was the assault with intent to murder case, and the solicitor said that he was mistaken about the case called, as the pistol case came first on the docket. The court then told defendant's attorneys that as the solicitor seemed to be mistaken, they would have to prepare showings in the pistol case. The defendant and his attorneys then retired from the room, and prepared showings which the solicitor admitted. The court asked the defendant's attorneys if they wanted to try the case with the jury then in the box, and one of defendant's attorneys replied, 'No;' that he would like to have another challenge. The court then said: 'Let that jury stand aside, and we will start over.' Another jury was then selected, state and defendant challenging jurors, and the indictment read to them. It was further agreed and admitted that the defendant was the same James Scott who was before the jury first impaneled, and that the indictment in this case was the same indictment read to them."

The state then introduced as a witness one John Moseley, who testified that he went to arrest the defendant; that he drew a shotgun on him, and caused him to surrender; and that, upon searching him, he found two pistols concealed in his front pants pocket. On cross-examination of this witness, he testified that he held no public office in the county. He was then asked: "Did you have any authority to arrest the defendant?" The state objected to this question, which objection the court sustained, and the defendant duly excepted. Thereupon the witness was asked the following question: "Did you not have a difficulty with the defendant a short time before you found the pistol on his person?" The witness answered that the defendant had had a difficulty with him about 15 or 20 minutes before he (the witness) arrested the defendant. The witness was then asked several questions, which sought to show that, at the time he had the difficulty with the defendant, he climbed into the defendant's wagon, and tried to cut him with a knife, and that the defendant jumped from the wagon. To each of the questions eliciting this evidence the state objected. The court sustained each of the objections, and the defendant separately excepted. This witness further testified that after arresting the defendant, he tied him, and took him back to his house. He was then asked...