McGehee v. State , 58 Ala. 360 ( 1877 )

STONE, J.

If it had been averred in this indictment that the two defendants had committed separate and distinct offenses, at different times — neither being present or participating in the offense of the other — a demurrer to the indictment would have lain, notwithstanding the two offenses charged are identical in character. This, on the well defined ground, that on such trial, it would be necessary to offer proof of two independent transactions; thus producing inextricable confusion of the minds of the jurors. — Elliot v. The State, 26 Ala. 78; Lindsey v. The State, 48 Ala. 169.

On like principles, if two offenders be charged in one indictment, which is faultless in form, and it be developed in the evidence that the two defendants committed their several offenses at different times or places — in other words, that they are not guilty of one and the same offense — the proof does not sustain the indictment. Only those persons who participate in the same offense should be joined in one indictment. — Lindsey v. The State, supra.

In the present case, according to the recitals in the bill of exceptions, each defendant was equally guilty, but they did not participate in one and the same offense. This was not shown until the evidence was given to the jury. At that stage of the trial, each defendant was placed in legal jeopardy, and was entitled to have a verdict of the jury on the question of his guilt, in the absence of some statutory or legal ground, authorizing a nolle prosequi, or other withdrawal from the jury, that another indictment might be preferred, or continuance granted. — Code of 1876, §§ 4893-4, 4908, 4817. This case does not fall within the healing provisions of the section last cited — The State v. Kreps, 8 Ala. 951.

There being no statute authorizing the entry of a nolle pros-equi to cure the defect which was developed on this trial, the Circuit Court erred in its allowance. This ruling is decisive of the present prosecution. The defendants having been placed in jeopardy, and being entitled to a verdict of acquittal on the proof made, must be a1low~d the benefit of the verdict they were entitled to, and can not be again tried for the same offense.-Henry v. The State, 33 Ala. 389; Ned v. The State, 7 Por. 187; McCauley v. The State, 26 Ala. 135; Ex parte Vincent, 43 Ala. 402.

Reversed, but not remanded, and the defendants ordered to be discharged.