Opinion
4 Div. 213.
January 11, 1927. Rehearing Denied March 8, 1927.
Appeal from Circuit Court, Covington County; W. L. Parks, Judge.
Robert Blair was convicted of second degree murder, and he appeals. Affirmed.
Certiorari denied, 216 Ala. 463, 113 So. 414.
A. Whaley, of Andalusia, for appellant.
The defendant was in former jeopardy by reason of the indictment charging him with first degree murder, and being tried a second time under that indictment. The solicitor should not have been permitted to amend the indictment as shown. Const. 1901, § 9; Code 1923, §§ 4551, 8644, 8651; State v. Kreps, 8 Ala. 951; Ex parte Williams, 213 Ala. 121, 104 So. 282; 16 C. J. 433.
Harwell G. Davis, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
Appellant was convicted of the offense of murder in the second degree, and given a sentence to serve ten years in the penitentiary of the state.
An effort, abortive perhaps, was made to establish the bill of exceptions, by statutory proceedings in this court. Inasmuch as the Attorney General, in open court, has admitted that the bill of exceptions as presented by appellant's counsel is correct in so far as it goes, the court is of the opinion that, waiving technicalities, justice will be done by considering same as lawfully established. Accordingly it is ordered that the said bill of exceptions as it appears by separate paper in the record is the true and correct bill of exceptions in the cause.
But a single question is presented for our decision. It appears that appellant, under indictment for the offense of murder in the first degree, had been on a former trial convicted of the offense of murder in the second degree. On this trial he was not allowed a special venire of jurors, but, during the progress of the trial, and before the case went to the jury, the solicitor made a motion, which was granted, that the charge of the offense of murder in the first degree be nol. prossed. The appellant cannot complain. Brewington v. State, 19 Ala. App. 409, 97 So. 763; Williams v. State, 20 Ala. App. 604, 104 So. 280; Ex parte Wiliams, 213 Ala. 121, 104 So. 282.
There being no error in the record, the judgment is affirmed.
Affirmed.