¶1The majority of this Court entertains the view that the conclusion reached by the Court of Appeals is correct.
¶2For the purposes of this opinion, the relevant facts will appear in the dissenting opinion of Mr. Justice MERRILL of this Court and the opinion of the Court- of Appeals.
¶3The underlying rational of the majority of the Court is that the defendant had the right to waive his plea of former jeopardy with respect to the charge of murder in the first degree in order, inter alia, to obtain a special venire if so • desired. The proceedings before us would seem to indicate this might have been his purpose.
¶4Therefore, if the State desired to preserve the record from error, it should have followed Rule 30, Code 1940, Tit. 7 Appendix, by moving for a nolle prosequi of the first degree murder charge and judgment accordingly entered. Barnett v. State, 28 Ala.App. 293, 184 So. 702, certiorari denied 236 Ala. 666, 184 So. 709. See also, 22 C.J.S., Criminal Law, § 463, page 711.
¶5We wish to express the view, though, that we do not think any constitutional right was transgressed nor that the stated “error infested the entire proceedings.”
¶6As observed, we agree with the result attained by the Court of Appeals.
¶7Judgment affirmed.