Scott v. State

• Decision Date: 11 June 1896
• Citation: 110 Ala. 48,20 So. 468
• Parties: SCOTT v. STATE.
• Court: Alabama Supreme Court

20 So. 468

110 Ala. 48

SCOTT v. STATE.

Supreme Court of Alabama

June 11, 1896

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

James Scott was indicted, tried and convicted of an assault upon one John Moseley, with a knife, with intent to murder him and was sentenced to the penitentiary for 25 months. The facts of the case, showing the rulings of the court which are reviewed on the present appeal, are sufficiently stated in the opinion. Reversed.

Grayson & Foster, for appellant.

Wm. C Fitts, Atty. Gen., for the State.

HARALSON J.

A plea of former jeopardy was interposed on the trial of defendant which is imperfect, but is stated to have been pleaded in short by consent, and issue was taken on it. In Bell v. State, 44 Ala. 394, the court said, as to the time when jeopardy begins gins in a criminal case: "The weight of authority seems to be, that when the jury has been impaneled and sworn, and the indictment read, and pleaded to by defendant, he is entitled to have the trial proceed to its conclusion. If it is then interrupted by a discharge of the jury, or other insufficient legal cause, he cannot be tried again." This principle we apprehend as a general proposition, cannot be questioned. It seems to be generally agreed that to constitute jeopardy, the cause or accusation should in some form be submitted to a jury impaneled to try it. "The jury is said to be charged with the prisoner when the twelve jurors are duly impaneled and sworn, and when they are thus sworn to try the accused on the charge preferred, jeopardy attaches." 11 Am. & Eng. Enc. Law, 933. Formerly and now in England, the act of submitting the cause to the jury, or charging them with the accusation as contained in the indictment against a defendant, was quite formal. The clerk of the court directed them to look on the prisoner, and hearken to the evidence, and read or stated to them the substance of the indictment, the plea, and their duty to find the defendant guilty or not guilty. Whart. Cr. Pl. & Prac. § 517. Mr. Bishop in speaking of this proceeding, characterizes it as mere form, but adds, that the jeopardy of our constitutional law begins at this point. 1 Bish. Cr. Proc. § 961. In his work on Criminal Law, the same author says: "Without a jury, set apart and sworn for the particular case, the individual defendant has not been conducted to his period of jeopardy. But when, according to the better opinion, the jury, being full, is sworn, and added to the other branch of the court, and all the preliminary things of record are ready for the trial, the prisoner has reached the jeopardy from the repetition of which our constitutional rule protects him." 1 Bish. Cr. Law, § 1015; Foster v. State, 88 Ala. 184, 7 So. 185.

Under the practice in this state, all misdemeanors and felonies not punished capitally, are tried by the petit jurors impaneled for the week or term in which such causes are tried, and they are not further sworn to try them as the causes are called. The oath taken by them in the beginning, and which is continuous and binding for all such causes, is, that they will well and truly try all issues, and execute all writs of inquiry, which may be submitted to them during the term, or week as the case may be, and true verdicts render according to the evidence. In the matter before us, there being two cases, both entitled alike, one immediately following the other on the trial docket, the first for a misdemeanor and the second for an assault with intent to murder-the one now here-one of the cases was called, the judge not specifying anything in the call, by its number or otherwise, to indicate which case was called. The state announced ready and so did defendant after the solicitor agreed to admit the showing of his absent witnesses. A jury was impaneled, out of the juries for the week, both sides having exercised the right of challenge. The solicitor then read the indictment charging the misdemeanor, when counsel for defendant objected, and stated that they were not trying the misdemeanor but the felony case, and that they were not ready to try for the misdemeanor, and that their showings for a continuance, admitted by the state, were in the felony case. The court stated that he had called the felony case, and that was the one in which he had put the defendant upon a showing for a continuance, and that it was his custom to take up first the felony cases. ...