§ 16-89-120 — Proof of higher offense

(a) If, during the trial, the court shall be of the opinion that the facts proved constitute an offense of a higher nature than that charged in the indictment, it may direct the jury to be discharged and all proceedings to be suspended until the case can be resubmitted to a grand jury and may order the defendant to be committed or admit him or her to bail to answer any new indictment which may be found against him or her for the higher offense. (b) If an indictment is not found for the higher offense before the next grand jury is discharged, the court must proceed to try the defendant on the original indictment. Crim. Code, § 231; C. & M. Dig., § 3199; Pope's Dig., § 4035; A.S.A. 1947, § 43-2125.