The Attorney General in his application for a rehearing in this case moves, first, that the judgment heretofore rendered in this cause reversing and rendering same be set aside and one entered affirming the case, and, secondly, that if the original judgment of reversal is adhered to that the case be reversed and remanded rather than reversed and rendered.
After careful reconsideration of the entire record we are firmly of the opinion that the judgment of reversal is correct and must be adhered to.
As to the second proposition, that the case should be reversed and remanded, rather than reversed and rendered, the Attorney General relies on the cases of Wallace v. State,27 Ala. App. 545, 176 So. 310, and Rogers v. State, 126 Ala. 40,28 So. 619, and on the operation of Section 226 of Title 15, and Section 810 of Title 7, Code of Alabama of 1940.
The Wallace case, supra, as we read it, holds that the indictment in that case was not void, and in the absence of demurrer would sustain the conviction.
An entirely different situation prevails in the instant case. As stated in the opinion, it is our view that in a criminal conspiracy of the character on which this indictment was based, "knowledge on the part of conspirators is essential to their criminality," and where the indictment failed to aver such essential ingredient, it cannot support a judgment of conviction.
Where the defect in an indictment is one of substance, the defendant is not sufficiently apprised by formal accusation of the nature and cause of the charge he is to defend, and such defect is jurisdictional. Sherrod v. State, 14 Ala. App. 57,71 So. 76, and proceedings under such defective indictment would be violative of Section 6, Alabama Constitution of 1901.
Where the indictment is so defective that it cannot support a judgment, the judgment on appeal is usually that the cause is reversed and an order be entered discharging the defendant. Butler v. State, 130 Ala. 127, 30 So. 338; Monroe v. State, 137 Ala. 88, 34 So. 382; Garrett v. State, 140 Ala. 667,37 So. 1021; Bice v. State, 16 Ala. App. 416, 78 So. 410. The same result was accomplished by the judgment of reversal and rendition in this case, since it affirmatively appears from the record that further prosecution of this case is barred by the statute of limitations. Since no new indictment can be found that could not be successfully defended by a plea of the statute of limitations, such fact presents an additional reason for the appropriateness of the judgment of reversal and rendition entered in this case. Parker v. State,20 Ala. App. 470, 103 So. 76; McCoy v. State, 27 Ala. App. 18,165 So. 263; Whaley v. State, 17 Ala. App. 661, 88 So. 24.
The Attorney General urges that in the event of a judgment of reversal the case should be remanded for a new judgment by the court below sustaining the demurrers and holding the defendant to answer a new indictment, or that this court itself should upon reversal and remandment enter an order holding the defendant for the return of a new indictment. The Attorney General relies on Section 810 of Title 7, and Section 226 of Title 15, Code of Alabama, 1940, and the case of Rogers v. State, supra. *Page 473
Section 810 of Title 7 is as follows: "The appellate court may, upon the reversal of any judgment or decree, remand the same for further proceedings, or render such judgment or decree as the court below should have rendered, when the record enables it to do so."
While Section 226 of Title 15 provides: "When an indictment is lost, mislaid, or destroyed, or when the judgment is arrested, or the indictment quashed for any defect therein, or for the reason that it was not found by a grand jury regularly organized, or because it charged no offense, or for any other cause, or when the prosecution is dismissed because of a variance between the allegations of the indictment and the evidence, and a new indictment is ordered to be preferred, the time elapsing between the preferring of the first charge or indictment and the subsequent indictment must be deducted from the time limited for the prosecution of the offense last charged."
Along with the above Code sections there must necessarily also be considered Section 258 of Title 15, which reads: "When the judgment is arrested, or the indictment quashed, on account of any defects therein, or because it was not found by a grand jury regularly organized, or because it charged no offense, or for any other cause, the court may order another indictment to be preferred for the offense charged, or intended to be charged; and in such case an entry of record must be made, setting forth the facts."
When the three Code sections above set out are read together it is clear that the above proposition urged by the Attorney General is without merit for two reasons: Firstly, Section 258, supra, provides that "the court may order another indictment to be preferred" etc. (Italics ours). The court referred to means the trial court, and the action taken in such premises is within his discretion; secondly, Section 258 further provides that in the event the court orders another indictment to be preferred, "an entry of record must be made, setting forth the facts." Since the trial court did not quash the indictment and order the defendant held to answer a new indictment, necessarily no entry of record was made setting forth the facts. Thus neither of the two necessary conditions precedent to further action by the trial court under the Code sections above mentioned are present.
Application overruled.