Smiley v. State

Citation65 So. 916,11 Ala.App. 67
Decision Date30 June 1914
Docket Number101
PartiesSMILEY v. STATE.
CourtAlabama Court of Appeals

Appeal from Circuit Court, Dallas County; B.M. Miller, Judge.

John Wesley Smiley was convicted of murder in the second degree and he appeals. Reversed and remanded.

Partridge & Hobbs, of Selma, for appellant.

R.C. Brickell, Atty. Gen., and W.L. Martin Asst. Atty. Gen., for the State.

PELHAM J.

The judgment entry shows that the defendant's motion to set aside the service of a copy of the indictment on the defendant, served in pursuance of the requirements of an order of the court made in conformity to the provisions of section 32 of the jury law (Acts 1909, pp. 317-319), was granted by the trial court and the service set aside and held for naught, on the ground that there was a variance between the original indictment and the copy served on the defendant in that the heading of the former showed that it was found at the fall term of the court, 1913, while the heading on the indictment served on the defendant read, "Fall Term 1911." It appears that, after the court quashed the service, the defendant was served with a true copy of the indictment against him, but this service was made without any additional order of the court at 3 o'clock in the afternoon, some seven days after the date of the original order of the court requiring a service "forthwith," and after the case had been called for trial, and the defendant was required to proceed with the trial at 9 o'clock the following morning after the 3 o'clock service of that day. This was not in compliance with the order of the court made in pursuance of the statute. Haisten v. State, 5 Ala.App. 56, 59 So. 361.

Whether or not the order of the court granting the defendant's motion in setting aside the first service of a copy of the indictment, because of a material variance, was properly made, and, if not, whether the defendant would be in a position to complain because of an erroneous action of the court made at his invitation and instance, we need not inquire, for, even though it should be conceded that the first service was regular and sufficient, and that the defendant could not take advantage of an erroneous order of the court invited by him, still the transcript presents no evidence that the indictment set out in the record proper upon which the defendant was tried, was legally and regularly returned into court. It is not shown to be a valid...

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7 cases
  • Strickland v. State
    • United States
    • Supreme Court of Alabama
    • March 28, 1974
    ...Criminal Appeals shows that the indictment contained an endorsement "a true bill." The Court of Criminal Appeals cites Smiley v. State, 11 Ala.App. 67, 65 So. 916 (1914), as authority for its reversal. In Smiley, the reporter's synopsis of the brief filed in the case by the appellant indica......
  • Yorty v. State
    • United States
    • Alabama Court of Appeals
    • June 30, 1914
  • Dowdy v. State, 8 Div. 224.
    • United States
    • Alabama Court of Appeals
    • May 26, 1931
    ...... of conviction. This identical question has been decided, as. here, in the following cases: Memory McMullen v. State, 17 Ala. App. 504, 86 So. 175; Whitley v. State, 166 Ala. 42, 52 So. 203; Bilbo v. State, 1. Ala. App. 74, 55 So. 927; Banks v. State, 13. Ala. App. 41, 69 So. 242; Smiley v. State, 11 Ala. App. 67, 65 So. 916; Joyner v. State, 78 Ala. 448;. Wilson v. State, 128 Ala. 17, 24, 29 So. 569;. Coburn v. State, 151 Ala. 100, 44 So. 58, 15 Ann. Cas. 249. . . No. valid indictment having been shown, it is unnecessary to. consider other questions presented. . ......
  • Goulden v. State
    • United States
    • Alabama Court of Criminal Appeals
    • June 4, 1974
    ...29 Ala.App. 57, 191 So. 402. See also Dowdy v. State, 24 Ala.App. 333, 134 So. 896, for a list of other cases. '* * * In Smiley v. State, 11 Ala.App. 67, 65 So. 916, we "* * * It is not shown to be a valid indictment, in that it is not shown to have been indorsed 'A true bill,' nor does it ......
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