Turk v. State

Decision Date01 June 1904
Citation37 So. 234,140 Ala. 110
PartiesTURK v. STATE.
CourtAlabama Supreme Court

Appeal from Circuit Court, Butler County; J. C. Richardson, Judge.

Charlie Turk was convicted of assault with intent to murder, and appeals. Reversed.

At the spring term, 1902, of the circuit court of Butler county, the grand jury preferred an indictment against the appellant in this case and others, which was in words and figures as follows: "The grand jury of said county charge that before the finding of this indictment Charlie Turk, Lovett Turk and Zeb Turk unlawfully and with malice aforethought did assault Frank Phillips with the intent to murder against the peace and dignity of the state of Alabama." The case was called for trial, and, after the jury had been selected and legally sworn to try the case, and the indictment had been read to them, and the defendants had pleaded not guilty, the solicitor called the attention of the court to a defect in the indictment, in that it failed to state whom the defendants intended to kill; it appearing that, just after the words "intent to murder," the word "him" or "Frank Phillips" was omitted. The solicitor asked the defendants to agree to an amendment of the indictment to cure the defect. Upon the defendants declining to consent to the indictment being amended, the solicitor thereupon moved the court to quash the indictment and to order another indictment to be found against the defendants. Against the objection of the defendants, the court granted the motion to quash the indictment, and ordered another indictment to be preferred, and, against the defendants' objection, discharged the jury which had been impaneled to try the case. At the spring term, 1903, of the circuit court of Butler county, the grand jury preferred another indictment against the same defendants, which was in words and figures as follows: "The grand jury of said county charge that, before the finding of this indictment Charlie Turk, Lovett Turk, and Zeb Turk unlawfully and with malice aforethought did assault John Phillips, with the intent to murder him, against the peace and dignity of the state of Alabama." To the second indictment the defendants pleaded former jeopardy. To this plea the solicitor demurred upon the ground which is stated in the opinion. The court sustained the demurrer. The defendants then pleaded not guilty, and, on the trial, Lovett Turk and Zeb Turk were acquitted, and the appellant in this case Charlie Turk, was convicted of an assault on John Phillips who was alleged in the plea of former jeopardy to be the same person as Frank Phillips, named in the first indictment. From a judgment of conviction, the present appeal is prosecuted.

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11 cases
  • Doss v. State
    • United States
    • Alabama Supreme Court
    • 27 Junio 1929
    ... ... for defects therein, and have properly overruled the ... demurrer, yet, if the pleas are manifestly insufficient, and ... no answer to the indictment, and the court properly so ... decides, we will not reverse its judgment. This court seems ... to have entertained a different view in Turk v ... State, 140 Ala. 112, 37 So. 234, and Coburn v ... State, 151 Ala. 100, 44 So. 58, 15 Ann. Cas. 249 ... But ... whether we apply the rule announced in the James Case, or the ... of the later cases treating the facts averred in the plea as ... true, as we must do on demurrer ... ...
  • Savage v. State
    • United States
    • Alabama Court of Appeals
    • 21 Junio 1921
    ... ... "The state cannot elect to prosecute and try a person ... for a lower grade and then put him on trial for a higher ... grade of the same offense." State v. Blevins, ... 134 Ala. 216, 32 So. 637, 92 Am. St. Rep. 22; Gunter v ... State, 111 Ala. 23, 20 So. 632, 56 Am. St. Rep. 17; ... Turk v. State, 140 Ala. 110, 37 So. 234 ... In ... Gunter's Case, supra, the late Justice Haralson, speaking ... for the court, said: ... "It is the settled rule of this court that a defendant ... cannot be lawfully punished for two distinct felonies, ... growing out of the same ... ...
  • Flanigan v. State
    • United States
    • Alabama Supreme Court
    • 28 Marzo 1946
    ... ... The ... demurrer in the instant case was too general to require the ... court to examine the indictment further than to see [247 Ala ... 648] that it had the statutory caption. The demurrer was, ... therefore, overruled without error. Turk v. State, ... 140 Ala. 110, 37 So. 234; Reeves v. State, 20 Ala ... 33; James v. State, 53 Ala. 380; Doss v. State, ... The ... state offered evidence going to show that the deceased Lee ... Shafer while on his way to work in the early morning of ... December 9, 1944, was ... ...
  • Mitchell v. State
    • United States
    • Alabama Court of Appeals
    • 12 Noviembre 1918
    ... ... offense. The plea of former jeopardy shows that these ... defendants were first placed upon trial under an indictment ... which was drawn under section 7677 of the Code of 1907. Under ... the averments of the plea, the defendants had been placed in ... jeopardy under this indictment. Turk v. State, 140 ... Ala. 110, 37 So. 234. It is evident that the court based its ... ruling in sustaining the demurrers to the plea on the ground ... that the indictment under which the appellants were placed on ... trial charged a different offense from that upon which they ... had been placed ... ...
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