Stevens v. State

• Decision Date: 30 June 1908
• Citation: 47 So. 208,156 Ala. 119
• Parties: STEVENS ET AL. v. STATE.
• Court: Alabama Supreme Court

47 So. 208

156 Ala. 119

STEVENS ET AL. v. STATE.

Supreme Court of Alabama

June 30, 1908

Appeal from Circuit Court, Henry County; A. A. Evans, Judge.

John Stevens and another were convicted of arson, and they appeal. Affirmed.

McClellan J., dissenting.

W. L Lee, for appellants.

Alexander M. Garber, Atty. Gen., for the State.

McCLELLAN J.

The charge against these defendants was arson. The judgment entry contains the following recital, and no more, on this subject "Demurrers to indictment for misjoinder of counts. Upon hearing of argument upon demurrer, it is the judgment of the court that the grounds of demurrer are well taken, whereupon it is ordered and adjudged by the court that said demurrer be, and the same is hereby, sustained and held as good. State takes a nol. pros. as to counts 2 and 3. Defendants object to the allowance of such nol. pros., and except to the ruling of the court in allowing it." The defendants were then put upon trial under the first count, and the jury returned a verdict of "guilty as charged." In James' Case 104 Ala. 26, 16 So. 94, it is said that an indictment charging in separate counts a misdemeanor and a felony "is entirely bad on demurrer for misjoinder." Such a demurrer was here interposed, and, as affirmatively appears from the judgment entry, which we quote, the demurrer, after consideration, was by the court sustained. This action, beyond any doubt, struck down wholly the indictment against these defendants and left them unimpleaded of any offense. Such being the effect of the judgment of the court on the demurrer, there was no charge of any character against these defendants subject to nol. pros. by the solicitor.

The only possible action open to the court to be taken, after sustaining the demurrer, was either to set that ruling aside or to remand the matter to a grand jury for a new indictment. Neither of these courses were taken. Certainly the nol. pros., even if given, against reason, a nominal effect, did not operate to revive the first count, which, with the whole accusation, fell under the ruling on the demurrer; and, furthermore, the ruling sustaining the demurrer was a judgment entitling the defendants to their discharge, unless one of the two courses mentioned were taken. It cannot be said that the consent by the court to the nol. pros. of the counts was the equivalent of a setting aside of the judgment striking down the whole indictment. Court...