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.
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."
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.
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.
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:
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 * * *."
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.