Opinion
8 Div. 202.
November 5, 1942.
Certiorari to Court of Appeals.
Petition of John Alford for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case of Alford v. State, 10 So.2d 370, wherein a judgment of conviction for manslaughter in the first degree was affirmed.
Writ denied.
Defendant by plea of former jeopardy, after alleging the matter shown by the opinion; says that "the legal effect of that verdict, so rendered as aforesaid and the discharge of the jury, was and is an acquittal of the offense charged in the indictment."
The State's demurrer to the plea was in substance that the plea shows upon its face that the verdict was not in proper form and the court was under no duty to keep the jury together, and under no duty not to dismiss the jury; that the verdict was void and was not received by the court; that the plea states no defense to the indictment.
Russell W. Lynne and S. A. Lynne, of Decatur, for the petition.
A verdict which is a mere nullity is no legal reason for discharge of the jury, and when this is the only reason for the discharge of the jury, and defendant does not consent to such discharge, the legal effect of such discharge is the acquittal and discharge of the defendant. Bell v. State, 48 Ala. 684, 17 Am.Rep. 40; Berry v. State, 65 Ala. 117.
Wm. N. McQueen, Atty. Gen., and John O. Harris, Asst. Atty. Gen., opposed.
On the first trial of the petitioner, under the indictment for murder, as the pleas of former jeopardy aver, the jury brought in a verdict finding the defendant guilty of manslaughter in the first degree, without fixing the punishment for the offense.
The pleas further aver that, "the court instructed the jury to return to the jury room and consider, determine and report to the court the punishment the jury fixed under said verdict, and the jury did return to the jury room and after deliberating for a long period of time, reported back to the court that they were unable to agree on the amount of punishment for said offense, and were thereupon discharged by the court."
The verdict was not void, but was incomplete and the court could not receive it without committing error. Code 1940, Tit. 14, § 322; Bates v. State, 170 Ala. 26, 54 So. 432.
Some of the grounds of demurrer were well taken and the court did not err in sustaining them. Constitution 1901 § 9; Code 1940, Tit. 30, § 100; Curry v. State, 203 Ala. 239, 82 So. 489; Andrews v. State, 174 Ala. 11, 56 So. 998, Ann.Cas. 1914B, 760; Ex parte Tanner, 219 Ala. 7, 121 So. 423; Pope v. State, 228 Ala. 609, 155 So. 79; Washington v. State, 125 Ala. 40, 28 So. 78.
The other question argued relates to the sufficiency of the evidence to warrant the submission of the case to the jury. This, under the repeated rulings, was a question for the Court of Appeals on the appeal to that court, not here reviewable on certiorari. Postal Telegraph-Cable Co. v. Minderhout, 195 Ala. 420, 71 So. 91.
The writ of certiorari is denied.
Writ denied.
GARDNER, C. J., and THOMAS and LIVINGSTON, JJ., concur.