Smith v. State

• Decision Date: 10 December 1929
• Docket Number: 4 Div. 617.
• Citation: 125 So. 64,23 Ala.App. 329
• Parties: SMITH v. STATE.
• Court: Alabama Court of Appeals

125 So. 64

23 Ala.App. 329

SMITH v. STATE.

4 Div. 617.

Court of Appeals of Alabama

December 10, 1929

Appeal from Circuit Court, Dale County; R. T. Goodwyn, Special Judge.

Ben Smith was convicted of murder in the second degree, and he appeals. Reversed and remanded.

Chas O. Stokes, of Ozark, and Lee & Tompkins, of Dothan, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

BRICKEN P.J.

This is a companion case to that of Huey Walding v. State, 122 So. 296. This appellant and said Walding were jointly indicted for the offense here complained of, and, from the judgment of conviction, this appellant appealed. The trials were had separately.

The indictment charged murder in the first degree, and appellant strenuously insists that the necessary preliminary orders were not made as required by section 8644 of the Code 1923. It is here contended that the "order" as made by the trial court (1) "does not set the day for the trial of the cause;" (2) "does not name the number of jurors to constitute the special venire;" (3) "nor does it set out the number drawn from the jury box which along with the regular jurors, shall constitute the special venire for the trial of the case." It is also insisted that the purported special venire served on defendant "contained two certain named persons, to wit, Edger Price and Calvin Hagler, and that the persons who were served and appeared in court as jurors on this venire were one Edgeworth N. A. Price and one Colon Hagler." These alleged omissions and discrepancies are properly raised, but from our viewpoint need not be discussed, as this appeal must be sustained and the judgment of conviction reversed because of other rulings of the court similar to those in the Walding Case, supra. The accused having by the effect of the jury's verdict been acquitted of the capital offense charged in the indictment, he consequently cannot again be tried upon that charge, and the points of decision involved upon the rulings of the court pertaining to the preliminary orders required by section 8644 of the Code 1923 may properly be termed functus, as no such orders upon another trial of this case will be required. We therefore refrain from a discussion of the merits of the several insistences in this connection.

As stated, this cause must be reversed upon the authority of Walding v. State, supra, as the identical points of decision which necessitated a reversal of the ...