Coburn v. State , 151 Ala. 100 ( 1907 )

SIMPSON, J.

The defendant in this case, was tried and convicted of the crime of grand larceny; the subject of the larceny being chairs and a table, alleged to be worth a little, over $5, which were taken from a warehouse.

It appears from the record that the .defendant interposed the plea of autrefois acquit, which it set out in the statement of the case; that “no motion, demurrer, replication, or any objection, by. any plea or paper,” was interposed; but the court on its own motion “overruled” the plea, stating that the same was not good, and stating what had been the proceedings in the city court of Bessemer, when the case was before it, as stated in the plea. When a plea is regularly interposed in a case, it is subject to either a demurrer or a motion to strike from the. records, and, if neither is interposed, issue must be taken on the plea, and it goes before the jury on the question of fact. The plea in this case was defective, and subject to demurrer; but it was the right of the pleader to have those defects pointed out, and then to amend his plea. We know of no rule by which the court can, of its own motion, “overrule” a plea on facts within the personal knowledge of the judge, without evidence properly produced before the court. — Andrews’ Stephen’s Pleading, p. 136; 16 Ency. Pl. &. Pr. p. 582, 583; Lovett v. State, 4 S. E. 912, 80 Ga. 255.

The defendant then interposed a plea in abatement, alleging, first, that the foreman of the grand jury failed to subscribe his name to the fact that said indictment was a true bill; and, second, that the name of the foreman was merely printed on the indictment, and not .signed. There does not seem to have been any demurrer or motion to strike this plea either; but the court “overruled” the plea, and “refused to hear or entertain "the said plea further.” In addition to what has been said in regard to the first plea, the first ground mentioned in said plea was a good cause for abating the suit, or, more properly, quashing the indictment (Code 1896, § 5089); and, while the court is of the opinion that the plea was demurrable as to the second ground (Bessemer v. State, 68 Ala. 544), yet the question should have been presented in accordance with the rules of pleading.

It as not material to the cause of the defendant whether or not Safronia Miles knew whose furniture il was that defendant had sold her; yet, as that question, if answered in the affirmative, would have led up to the question as to who did own the property (which was a material inquiry), the court erred in sustaining the objection to said question.

The court erred in sustaining the objection to the question to the Avitness Safronia Miles, “if she did not buy the furniture from Mitchell.” The Avitness had testified, on examination in chief, that she had bought the furniture from the defendant and one Pratt, and it Avould have been proper to allOAV the defendant, on cross-examination, to test her recollection, by asking AAdiether, as a matter of fact, she did not buy the furniture from another party.

The judgment of the court is reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Haralson and Denson, JJ., concur.

Tlie judgment of tlie court is reversed, and the cause remanded.

Reversed and remanded.

Tyson, C. J., and Haralson and Denson, JJ./ concur.