Cobb v. State

85 So. 870, 17 Ala. App. 479, 1920 Ala. App. LEXIS 134

Opinion

MERRITT, J.

The defendant was indicted by the grand jury of Montgomery county for burglary and grand larceny. He was convicted by a jury and sentenced to the penitentiary for a term of from 2 to 4 years.

[1-4] The court properly overruled the defendant’s motion to quash the indictment. This was a new charge against the defendant, and the fact that the mittimus under the former charge was.functus officio in no wise worked a discontinuance of this case. The testimony showed that the defendant was 15 years old. This being true, the confessions as made to the witness Lillian Dungee were, under Code 1907, § 6464, and the case of Bessie Felder v. State, 85 South. 868, 1 clearly not admissible against the defendant. This was the only testimony connecting the defendant with the commission of the crime.

To have allowed the testimony of the witness for the purpose of impeaching the defendant was permitting that to be done indirectly which could not be done directly.

The general affirmative charge, as requested by the defendant in writing, should have been given.

Reversed and remanded.

1 Ante, p. 458.