Smiley v. State
Alabama Court of Appeals
Appeal from Dallas Circuit Court. Heard before Hon. B. M. Miller. John Wesley Smiley was convicted of murder in the second degree and he appeals.
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Appeal from Dallas Circuit Court. Heard before Hon. B. M. Miller. John Wesley Smiley was convicted of murder in the second degree and he appeals. The variance'was a material variance, and the court properly set aside the original service. — Nutt v. State, 63 Ala. 180. The subsequent service was not a compliance with the order of the court as originally made, nor with any other order, and was consequently void. — Acts 1909, p. 317; Nutt v. State, supra; Haisten v. State, 5 Ala. App. 1; Welsh v. State, 1 Ala. App. 144. The indictment itself was not sufficient to support a conviction as the…
1Opinion of the CourtPelham, J.
The judgment entry shows that the defendant’s motion to set aside the service of a copy of the indictment on the defendant, served in pursuance of the requirements of an order of the court made in conformity to the provisions of section 32 of the jury law (Acts 1909, pp. 317-319), was granted by the trial court and the service set aside and held for naught, on the ground that there was a variance between the original indictment and the copy served on the defendant, in that the heading of the former showed that it was found at the fall term of the court, 1913, while the heading on the…
2Cases cited2 opinions
- Whitley v. StateSupreme Court of Alabama · 1910
- Haisten v. StateAlabama Court of Appeals · 1912
3Cited by6 opinions
- Strickland v. StateCourt of Criminal Appeals of Alabama · 1973
- Dowdy v. StateAlabama Court of Appeals · 1931
- Hanners v. StateAlabama Court of Appeals · 1920
- Banks v. StateAlabama Court of Appeals · 1915
- Goulden v. StateCourt of Criminal Appeals of Alabama · 1974
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