Carr v. State

Key passage — most relied on by later courts

““Appellant was convicted of the offense of murder in the second degree, and his punishment fixed at imprisonment in the penitentiary for the term of twenty years. The appeal is on the record proper, without bill of exceptions. Appellant complains that, the indictment under which he was tried charging murder in the first degree, and the record disclosing that no special venire was drawn for the trial of his case as provided by Code 1923, § 8644, the judgment of conviction should be reversed as for a failure of the record to disclose a waiver by him of the special venire in the manner and form prescribed by Code 1923, § 8651. Whatever might be the merits of this insistence if appellant had been convicted by the jury of the offense of murder in the first degree, it cannot avail him here, for the reason that his conviction of murder in the second degree operated to acquit him of the higher offense, and any error, if there was error, having regard solely to the charge of murder in the first degree, is harmless. Supreme Court Rule 45; Brewington v. State, 19 Ala.App. 409 , 97 So. 763 ; Blair v. State, 22 Ala.App. 24 , 113 So. 414 . We find no prejudicial error in the record, and the judgment of conviction is affirmed. Affirmed.””

quoted by 1 later decision, including 51 Ala. App. 529 - McKanney v. State