Powell v. State

7 Citing cases

  1. Ex Parte Anderson

    457 So. 2d 435 (Ala. Crim. App. 1984)   Cited 11 times
    In Anderson, the defendant was tried three times to hung juries, and in two of the cases the court gave an Allen charge.

    After such a mistrial, the retrial of the defendant is not barred by double jeopardy. Alford v. State, 243 Ala. 404, 10 So.2d 373 (1942); Curry v. State, 203 Ala. 239, 82 So. 489 (1919); Parker v. State, 51 Ala. App. 362, 285 So.2d 526, cert. denied, 291 Ala. 795, 285 So.2d 529 (1973); Willingham v. State, 50 Ala. App. 363, 279 So.2d 534, cert. denied, 291 Ala. 803, 279 So.2d 538 (1973); Powell v. State, 37 Ala. App. 192, 65 So.2d 718 (1953). `A mistrial is no trial.' Willingham, 50 Ala. App. at 366, 279 So.2d 534.

  2. Clements v. State

    390 So. 2d 1131 (Ala. Crim. App. 1980)   Cited 21 times
    In Clements v. State, 390 So.2d 1131, 1132 (Ala.Crim.App.), cert. denied, Ex parte Clements, 390 So.2d 1136 (Ala. 1980), the court held that "a jury's inability to agree either on a verdict or punishment is a proper reason for the declaration of a mistrial.

    After such a mistrial, the retrial of the defendant is not barred by double jeopardy. Alford v. State, 243 Ala. 404, 10 So.2d 373 (1942); Curry v. State, 203 Ala. 239, 82 So. 489 (1919); Parker v. State, 51 Ala. App. 362, 285 So.2d 526, cert. denied, 291 Ala. 795, 285 So.2d 529 (1973); Willingham v. State, 50 Ala. App. 363, 279 So.2d 534, cert. denied, 291 Ala. 803, 279 So.2d 538 (1973); Powell v. State, 37 Ala. App. 192, 65 So.2d 718 (1953). "A mistrial is no trial."

  3. United States v. Richardson

    702 F.2d 1079 (D.C. Cir. 1983)   Cited 7 times
    In Richardson, the Supreme Court has held, insofar as double jeopardy protection is concerned, that the government's right to reprosecute after a hung jury is paramount to a defendant's right to test the sufficiency of the evidence at the first trial by appealing the trial court's denial of a motion for judgment of acquittal.

    Bodey II, supra. Before Burks, both the cases and the commentators contain such statements as "When a jury fail to agree on a verdict . . . the whole proceeding is nullified, and nothing remains which can benefit accused," 22 C.J.S. Criminal Law § 260 at 681 (1961); "`In legal effect a mistrial is equivalent to no trial at all,'" Powell v. State, 37 Ala.App. 192, 193, 65 So.2d 718, 719 (Ala.Ct.App. 1953) (quoting from 58 C.J.S. Mistrial at 834 (1948)). There is a similar dearth of authority concerning the same issue in the civil context.

  4. Wainwright v. State

    302 So. 2d 545 (Ala. Crim. App. 1974)   Cited 1 times

    There is no necessity for two arraignments for one trial. Powell v. State, 37 Ala. App. 192, 65 So.2d 718; Baker v. State, 48 Ala. App. 535, 266 So.2d 340. As we have noted, the evidence for the state and the appellant was in sharp conflict as to who brought on the difficulty. If there is a reasonable inference to prove the existence of the corpus delicti the court should submit to the jury the question of the sufficiency and the weight of the evidence tending to support that inference.

  5. Parker v. State

    51 Ala. App. 362 (Ala. Crim. App. 1973)   Cited 10 times

    In legal effect a mistrial is equivalent to no trial at all. Powell v. State, 37 Ala. App. 192, 65 So.2d 718. In Powell, supra, the court quoted from State v. Hutter, 145 Neb. 798, 18 N.W.2d 203, which stated:

  6. Parham v. State

    47 Ala. App. 76 (Ala. Crim. App. 1971)   Cited 19 times

    From this background arose the formality of accusation, arraignment with traverse or avoidance, selection and swearing of the petty jury, then the charging of the jury with the deliverance of the prisoner at the bar. Murray v. State, 210 Ala. 603, 98 So. 871; Bell v. State, 44 Ala. [393] 394; Powell v. State, 37 Ala. App. 192, 65 So.2d 718; Epps v. State, 28 Ala. App. 105, 179 So. 395; Lyles v. State, 41 Ala. App. 1, 122 So.2d 724; Artrip v. State, 41 Ala. App. 492, 136 So.2d 574. Our statutory oath or affirmation for petty jurors calls for them to (1) "well and truly try all issues * * * which may be submitted * * * (2) and true verdicts render according to the evidence * * *."

  7. Gandy v. State

    42 Ala. App. 215 (Ala. Crim. App. 1963)   Cited 12 times
    Holding that offenses of robbery where Gandy "stuck up" a group of men on one occasion constituted "separate and distinct offenses as to each victim" and did not violate double jeopardy

    There was no necessity for a second arraignment. Turner v. State, 266 Ala. 250, 96 So.2d 303; Powell v. State, 37 Ala. App. 192, 65 So.2d 718. Defense counsel argues that the evidence taken at the hearing shows that a crowd of men were shooting craps in the woods near Coalburg; on February 4, 1959, when defendant and three others, all of whom were armed, "stuck them up;" that it appears that all the victims were robbed on this occasion and during the robbery defendant struck Otis Hill with a pistol for which he was indicted for assault with intent to murder; that appellant was also indicted for the robbery of Dewey G. Patterson and Douglas Goodwin; that there was but one act with one single crime resulting, and there could be only one conviction and that defendant had been convicted in Case No. 452, growing out of the robbery of Dewey Patterson, and that he could not have interposed a plea of autrefois convict at the time he was arraigned on the three indictments and entered his pleas of not guilty, citing Windham v. State, 41 Ala. App. 280, 129 So.2d 338.