Herndon v. State

Alabama Court of Appeals

Herndon v. State

110 So. 595, 21 Ala. App. 610, 1926 Ala. App. LEXIS 352

CourtAlabama Court of Appeals

DecidedDecember 14, 1926

Docket1 Div. 696.

StatusPublished

This text of 110 So. 595 (Herndon v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Herndon v. State, 110 So. 595, 21 Ala. App. 610, 1926 Ala. App. LEXIS 352 (Ala. Ct. App. 1926).

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Opinion

SAMFORD, J.

Defendant was charged, by affidavit made before the clerk of the inferior court of Mobile county, with having carried on the business ef bookmaking or pool selling, etc. Warrant was issued returnable before the judge of the inferior court of Mobile county, before whom defendant appeared and demanded a jury trial, and was required to and did enter into bond conditioned for his appearance at the next session of the circuit court of Mobile county; said bond being in conformity to section 3854 of the Code of 1923. These proceedings gave to the circuit court jurisdiction to proceed with the prosecution as is provided by law. The charge here being indictable, and not having been otherwise provided for, the circuit court could not proceed until the case had been investigated by a regular grand jury and an indictment returned. This is “due process” guaranteed to each defendant and without which he cannot be tried. The Legislature has in certain instances and in some counties provided otherwise, and where this is the case the courts generally have upheld such statutes; but no such law applies to Mobile county. A full discussion of the question may be found in Streanger v. State, 1 Div. 693, 110 So. 595, 1 in the consideration of which case we hate been materially aided by the briefs for appellant in this and allied cases dependent on this decision.

. The other questions raised in this record are unnecessary.

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

Reversed and remanded.

1

Ante, p. 600.

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SAMFORD, J.

Defendant was charged, by affidavit made before the clerk of the inferior court of Mobile county, with having carried on the business ef bookmaking or pool selling, etc. Warrant was issued returnable before the judge of the inferior court of Mobile county, before whom defendant appeared and demanded a jury trial, and was required to and did enter into bond conditioned for his appearance at the next session of the circuit court of Mobile county; said bond being in conformity to section 3854 of the Code of 1923. These proceedings gave to the circuit court jurisdiction to proceed with the prosecution as is provided by law. The charge here being indictable, and not having been otherwise provided for, the circuit court could not proceed until the case had been investigated by a regular grand jury and an indictment returned. This is “due process” guaranteed to each defendant and without which he cannot be tried. The Legislature has in certain instances and in some counties provided otherwise, and where this is the case the courts generally have upheld such statutes; but no such law applies to Mobile county. A full discussion of the question may be found in Streanger v. State, 1 Div. 693, 110 So. 595, 1 in the consideration of which case we hate been materially aided by the briefs for appellant in this and allied cases dependent on this decision.

. The other questions raised in this record are unnecessary.

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

Reversed and remanded.

1

Ante, p. 600.

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110 So. 595, 21 Ala. App. 610, 1926 Ala. App. LEXIS 352, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herndon-v-state-alactapp-1926.

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