Cornelison v. State

MERRITT, J. Section 7570 of the Code makes provision, not for a test of jurisdictional fleetness between certain courts, but is designed for the purpose of not having two prosecutions proceed in different courts for the same offense against the same person at one and the same time. The abatement therefore of the prosecution against the defendant in the circuit court must be predicated on the fact that a prosecution “has been first commenced and is still pending in the county court,” not that such prosecution was pending at the time the indictment was found, which was returned to the circuit court, nor at the time the defendant was arrested, but at the time when he is put upon trial in the circuit court. Any other construction of the statute would be to ingraft upon it words not there, either expressly or impliedly, and give to it a meaning that was never intended. True it is, as contended for by counsel for the defendant, that the defendant has probably been annoyed by two arrests for the same offense, but the real crux of the matter is, as stated before, to have the circuit court yield under such a state of facts. Defendant might as well contend that, if trial was had in the county court, and he had been acquitted on the same charge, it would be annoying to plead autre fois acquit in the circuit court when called there for trial; yet this would have been the case should he have availed himself of such a plea in the circuit court. The prosecution in the circuit court under section 7570 abates only when a like prosecution “is still pending in the county court.” The effect of the defendant’s contention would be that, in case a prosecution was first commenced in the county court, or before a justice of the peace with final jurisdiction, and pending such prosecution the grand jury should indict the defendant for the same offense, and that the prosecution before either the county court or the justice should be dis *641 missed subsequent to the finding of the indictment, that the state could not proceed with the prosecution in the circuit court. Such is not the law. The finding and return of the indictment is a part of the prosecution, but is not the prosecution as is contemplated by section 7570. The defendant would claim the benefit -of this section on the finding of an indictment, when as a matter of fact he can only claim it when the prosecution is under the indictment for the same offense as is still pending in the county court, and such prosecution is attempted to be carried to a conclusion by the trial, conviction and sentence of the defendant. The plea, having failed to allege the fact that the prosecution was still pending in the county court at the time of the trial in the circuit court, was subject to the demurrer interposed by the solicitor. The adjudication that the defendant is guilty “of retailing” is surplusage in the judgment entry. If an adjudication of guilt is necessary, the judgment entry in this case is sufficient. Hardeman v. State, 202 Ala. 694, 81 South. 656. The case of Powell v. State (Ala. App.) 90 South. 138, 1 so far as this court is concerned, is conclusive against the contention of appellant that the trial court erred in admitting over the defendant’s objection testimony as to what was found at defendant’s home without a search warrant. "We find no error in the record, and the judgment appealed from is affirmed. Affirmed. Footnotes [1] Ante, p. 101.