Aaron v. State , 39 Ala. 75 ( 1863 )

STONE, J.

The record informs us, that copies of the indictment, and of the list of jurors summoned for the trial of the prisoner, were served on him two entire days before the day appointed for his trial. The prisoner was in actual confinement at the time. It is objected, that the service was not also upon the prisoner’s counsel, and that the papers, when served, were not read to the prisoner. There is nothing in either of these objections; the statute not requiring either of these .things to be done, unless, when the prisoner is not in actual confinement, the first named rule must be conformed to, in a certain contingency. — Code, § 3576.

[2.] The question of the admissibility of the confessions of the accused, as evidence against him, is not materially different from the same question, as shown in the record when this case was formerly before us. We then held the confessions admissible, and we hold that the confessions disclosed in this record were competent evidence against the accused. — See Aaron v. The State, 37 Ala.

[3.] The point made on the motion in arrest of judgment rests on the following facts: Aaron and Eanty, two slaves, were jointly indicted for killing Louis Boudet, a white man. The indictment contained two counts, one for unlawfully and maliciously killing, and the other for unlawfully and voluntarily killing the deceased. There was a severance, and tbe two defendants were tried separately. On tbe first trial of Aaron, tbe verdict was in tbe following language: "We, tbe jury, find tbe prisoner, Aaron, guilty as charged in tbe first count of tbe indictment.” Subsequently, tbe conviction bad upon that finding of tbe jury, against Aaron, was reversed by tbis court. At a later term, Aaron was again put on trial on tbe first count of said indictment, tbe proscuting attorney entering a nolle-proseqid on tbe second count; aud tbe prisoner was again found guilty. Between tbe rendering of tbe second verdict of guilty in Aaron’s case, and tbe sentence pronounced against bim, Banty bad bis trial in tbe same court, and at tbe same term. His demurrer to tbe first count of tbe mdictment was sustained; and be was tried and acquitted on tbe second count. Thereupon, Aaron moved in arrest of judgment; and tbe question is'] thus presented, Does tbe verdict rendered against Aaron on tbe first trial, being a virtual acquittal on tbe second count, so operate as to prevent any conviction of bim under tbis indictment, tbe two counts being each for one and tbe same offense, to-wit, voluntary manslaughter? Is it true, that being, by tbe implied acquittal on tbe second count, found not guilty of manslaughter, be cannot be convicted under tbe first count, which charges tbe same offense ?

Such argument answers itself. Conceding both counts to be in manslaughter, and charging one and tbe same offense, if tbe verdict be held to be an acquittal of that offense, because it in effect finds tbe defendant not guilty under tbe second count; by tbe same line of argument, tbe verdict must be held to be an affirmation that tbe defendant is guilty of manslaughter, because it finds bim guilty of that offense under tbe first count. But we are not left to tbis fine of argument; for, although tbe two counts may alike charge tbe crime of voluntary manslaughter, and may be in law tbe same, they are widely different in fact, because maliciously and voluntarily are words of decidedly different signification. In such case, it is very clear that, if tbe jury bad expressly found tbe defendant guilty on tbe first count, and not guilty on tbe second, such finding, on a trial after reversal, could not be regarded as a bar to a second conviction on tbe first count.

In wbat we have said, we do not wish to be understood as affirming, that an acquittal would necessarily have followed if the two counts had not differed materially in averment. The books abound with cases, in which the indictment contains several counts, each charging the same offense; and we are not aware that it has ever been ruled that, in such cases, there must be a conviction on each count, or there can not be on either. — See 1 Waterman’s Archbold, 93-4, and note 2.

[4.] It is contended that the judgment should have been arrested, because there was, in fact, no indictment pending against Aaron; the first count having been pronounced defective, under Banty’s demurrer, and the second count having been nolle-prossed in Aaron’s case. There is nothing in this argument. The judgment of the court in Banty’s case could neither benefit nor prejudice Aaron’s rights. The judgment was res inter alios acta, and could not, in any way, affect the sufficiency of the indictment as against Aaron. Each count in the indictment was clearly good as a count in voluntary manslaughter; and if the first count contained unnecessary averments, its validity was not thereby impaired. The most that could result from such unnecessary averments, would be to hold the prosecuting attorney to the proof of it. — -See Johnson v. The State, 35 Ala. 363, and authorities cited.

[5.] On the remaining question, we think the conviction must be reversed. When the venue, in a criminal case, is changed, the law makes it the duty of the clerk to make out a transcript, and forward it to the clerk of the county in which the trial is ordered to be had. — Code, § 3613. The defendant must be tried on the copy of the indictment so certified. — Code, § 3615. The copy of the indictment, thus certified, becomes the indictment on which the trial must be had; but it may be amended, or rectified, under the direction of the court to which the case is transferred, if necessary. A certified transcript of the record, not under the direction of the court, oí pursuant to certiorari, or a transcript made in another cause, can not be regarded as an omitted portion of the record certified, or, an error rectified, in compliance with the statute. — Code § 3615. The transcript certified by tbe clerk is so confused in dates, that it fails to satisfy us that it contains tbe caption of tbe grand jury by wbicb tbe indictment was found. Tbis may be, and probably is, a clerical error; but we fear to indulge in speculation, in cases as grave as tbe present. Tbe transcript should be rectified or amended, as tbe law points out. — See Aaron v. The State, 37 Ala.; Bramlett v. The State, 31 Ala. 376.

Tbe judgment of tbe circuit court is reversed, and tbe cause remanded. Let tbe prisoner remain in custody, until discharged by due course of law.