May v. State

55 Ala. 164

Opinion

BRICKELL, C. J. —

It is only from a final judgment of conviction that an appeal or writ of error will lie to this court. E. C., chap. 12, part 4, tit. 3. The present appeal is taken from a mere order of the City Court holding the appellant to answer an indictment, if one should be preferred by the grand jury; and must be dismissed.

It is proper, however, to say, the verdict of the jury was an affirmation of the defendant’s innocence of the offenses charged in the first and second counts of the indictment, and of his guilt only of the offense charged in the third count. The arrest of the judgment, because of tbe insufficiency of the third count, did not disturb the verdict on the first and second counts, nor lessen its force as an acquittal of the defendant, final and conclusive, of the offenses therein charged. Bell & Murray v. State, 48 Ala. 684. The City Court was in error in holding the accused to answer an indictment embracing these offenses; and if such indictment should be found, a plea of former acquittal would be a full answer to it, and afford tbe appellant ample protection.

The appeal is dismissed.