Smithson v. State

This case was assigned to Presiding Judge BRICKEN, who prepared the opinion hereafter appearing. A majority being in disagreement, that opinion becomes a dissent. The effect of the dissenting opinion would be to reaffirm the conclusions we reached in the case of Moore v. State,33 Ala. App. 188, 31 So.2d 373.

As Mr. Justice Frankfurter of the United States Supreme Court recently stated: "Wisdom too often never comes, and so one ought not to reject it merely because it comes late."

After considerable study and research, we now entertain the view that we fell into error in the Moore case, in…