Perkins v. State

66 Ala. 457

Opinion

STONE, J.

1. If the grand jury found the second indictment in this case on insufficient testimony, that was not a matter for plea in abatement. It could have been reached only by motion to quash, supported by testimony. — 8par~ renberger’s case, 53 Ala. 481. An exception to the judge’s charge to the grand jury is not provided for by our statute, and does not furnish ground for an assignment of error in this court. — Code of 1876,' §§ 3107, 4978; 1 Bish. Or. Proc. §§ 872, 873, 885.

2. The objection that the second indictment was found before the first one was quashed, can not be sustained. That is the better and more usual practice. — 1 Whar. Amer. Cr. Law, § 573; 1 Bish. Cr. Proc. § 770, and other authorities cited by counsel. The Circuit Court did not err in the various rulings on the pleas in abatement.

3. The Circuit Court did not err in receiving the confessions of the accused in evidence. No inducement of promise, or - menace to him, called out what he said. His statements appear to have been entirely voluntary.—Aaron v. The State, 37 Ala. 106; Johnson v. The State, 59 Ala. 37.

The judgment is affirmed.

It is therefore ordered and adjudged, that the sentence of the law be carried into effect, by hanging the defendant, Ben Perkins, by the neck, until he is dead, on Friday, 26th August, 1881; and the sheriff of Sumter county is charged with the execution of this sentence* in the mode prescribed by the statute. — Code of 1876, § 4617.