Opinion
3 Div. 362.
June 8, 1920.
Appeal from Circuit Court, Montgomery County; Leon McCord, Judge.
Dennis Cobb was convicted of burglary and grand larceny and he appeals. Reversed and remanded.
The defendant was 15 years old, and was committed to jail under a mittimus from the juvenile court, and held to await the action of the grand jury. A grand jury met, investigated many charges, and adjourned without returning an indictment against the defendant. The case was not marked continued for further investigation, and the grand jury did not request the court to make any order continuing said charge, and, after the adjournment or recess of the grand jury, defendant was discharged from custody on order of the solicitor. On these facts the defendant bases a motion to quash the indictment, preferred against him by a later grand jury.
The evidence of Lillian Dungee was that she was probation officer for the county of Montgomery, and that she learned that the stolen rifle was at the home of Will Jackson, and that it came from the defendant, having been sold to Jackson by one Crowder, a boy then in the penitentiary, and that Crowder made a statement to her in the presence of the defendant, in which he stated that he got the rifle from his brother and sold it to Will Jackson, but finally admitted that Dennis Cobb gave him a rifle to sell, and they were to divide the money. The defendant objected to all this testimony, and moved to exclude it.
Brassell Brassell, of Montgomery, for appellant.
The indictment should have been quashed. 1 S. P. 465; 47 Ala. 670; 79 Ala. 59; 104 Ala. 93, 16 So. 122; 156 Ala. 184, 47 So. 266. The court erred in admitting the testimony of the probation officer. Ante, p. 167, 82 So. 657.
J.Q. Smith, Atty. Gen., for the State.
No brief reached the Reporter.
The defendant was indicted by the grand jury of Montgomery county for burglary and grand larceny. He was convicted by a jury and sentenced to the penitentiary for a term of from 2 to 4 years.
The court properly overruled the defendant's motion to quash the indictment. This was a new charge against the defendant, and the fact that the mittimus under the former charge was functus officio in no wise worked a discontinuance of this case. The testimony showed that the defendant was 15 years old. This being true, the confessions as made to the witness Lillian Dungee were, under Code 1907, § 6464, and the case of Bessie Felder v. State, 85 So. 868, clearly not admissible against the defendant. This was the only testimony connecting the defendant with the commission of the crime.
Ante, p. 458.
To have allowed the testimony of the witness for the purpose of impeaching the defendant was permitting that to be done indirectly which could not be done directly.
The general affirmative charge, as requested by the defendant in writing, should have been given.
Reversed and remanded.