AARON (a slave) vs. THE STATE

AARON (a slave) vs. THE STATE. [indictment against slave for murder of white person.] 1. Service of copies of indictment and venire. — Where the prisoner is in actual confinement, and copies oí the indictment and venire are served on him personally, (Code, § 3576,) it is not necessary that they should he read to him, although he is a slave, nor is it necessary that copies should also bo sei’ved on his counsel. 2. Admissibility of confessions. — The confessions of the prisoner in this case, who was a slave, were held admissible, on the authority of the former decision of this court in the case, (37 Ala. 106,) although they were made to the constable Who had him in custody, and who had said to him, “ If you are guilty, it is better to say so, but, if you are not, we do not wish you to do so”; and although the prisoner had himself been examined as a witness, on an investigation before two magistrates respecting the homicide; and although the magistrates were in the company of men by whom the prisoner was attended at the time the confessions were made, and by whom he was being conducted to the place at which the adjourned examination was to be resumed. 3. Conviction on one of several counts ; forme.r acquittal or conviction, — Under an indictment containing two counts, one charging that the defendant, a slave, “ unlawfully and maliciously” killed a white person, and the other that the killing was “ unlawfully and voluntarily” done ;• a verdict of “ guilty as charged in the first count” having been rendered on the first trial, and a nolle-prosequi as to the second count having been entered after the reversal of the judgment on appeal,— this is no bar to a second conviction on the first count, nor good in arrest of judgment. 4. Severance of trial; effect of separate judgments. — -Where an indictment, containing two good counts, charged two slaves with the voluntary manslaughter of a -white Iverson. an^ a geveraiiee having heen granted, one of the defendants was found “ guilty as charged in the first conut,” and a molle-prosegui as to the second count was afterwards entered in his case; while the other defendant, in whose ease a demurrer was erroneously sustained to the second count, was tried and acquitted on the first count, — held, that this was not good matter in arrest of judgment, after a second conviction on the first count, in the case of the first defendant. 5, Change of venue: sufficiency of certified transcript. — On change of venue in a criminal case, (Code, § § 3608-15,) if the certified transcript fails to show that the court was held at the time required hy law, or shows that the grand jury was organized, and the indictment returned into court, before the day on which the court was held, it must'he corrected as the statute prescribes; and if this is not done, the judgment will he reversed on error or appeal, although the mistake was shown to the primary court, hy other transcripts not properly returned, to he a mere clerical misprision. Feom tbe Circuit Court of Mobile, on change of venue from Baldwin. Tried before the Hon. C. W. Rapier. The prisoner, who was a slave, was indicted in the circuit court of Baldwin county, jointly with another slave by the name of Ranty, for the homicide of one Louis Boudet, a white man. The indictment contained two counts; the first charging that the defendants “unlawfully and maliciously killed” said Boudet, “ by striking him with a stick, or by cutting and stabbing him with a knife or spade”; and the second charging that the killing was done “ unlawfully and voluntarily”. At the term at which the indictment was. found, the defendants were arraigned, and both pleaded not guilty; and a severance was granted on their application. At the nest term, the venue was changed, in both cases, to Mobile county; and the defendant Aaron was there tried, at the December term, 1860, when the jury returned a verdict of “guilty as charged in the first count” ; but the judgment of conviction thereon rendered was reversed by this court, at its January term, 1861, and the cause was remanded. — See the case reported in 37 Ala. At the May term, 1868, as the bill of exceptions in the present record shows, a nolle-prosequi was entered as to the second count of the indictment in Aaron’s case; and he was put on his trial on the first count, issue being joined on tbe plea of not guilty. Tbe prisoner moved to quasb tbe venire, “because tbe same bad not been served on.him according to law, nor upon bis counsel as required by law” ; and be also objected to going to trial, “ because a copy of tbe indictment bad not been served on bim, nor upon bis counsel, according to law”. In support of these motions, it was proved to tbe court, by tbe deputy sheriff, who made the service, that copies of tbe venire and indictment were served on tbe prisoner, who was then in jail, more than two entire days before tbe day appointed for tbe trial ;• but that they were not read to bim, nor were copies served on bis counsel, though be requested that they might be served on bis counsel. On this proof, tbe court overruled tbe objections, and tbe prisoner excepted. Tbe prisoner then objected to tbe certified transcript of the record which bad been forwarded by tbe clerk of tbe cbcuit court of Baldwin, because it showed, in its caption, that tbe circuit court of Baldwin was held, and tbe grand jury organised, “ on tbe second Monday after tbe fourth Monday in November, 1858,” while tbe indictment itself, as set out in said transcript, purported to have been returned into court on the 9th day of November, 1858. Tbe counsel for tbe State then produced to tbe court two other transcripts of tbe record from Baldwin cbcuit court, one of which bad been forwarded under an order for “ tbe original bill of exceptions” which bad been taken before tbe change of venue, and tbe other under a certiorari awarded in Ranty’s case; and in both of these transcripts tbe caption stated, that tbe court was held on tbe second Monday after tbe fourth Monday in October. Tbe prisoner objected to tbe inspection of these transcripts by tbe court, and reserved an exception to tbe overrubng of bis objection. “ Tbe court then required tbe prisoner to go to trial; but, some question arising, as to which one of said transcripts should be used before tbe jury, tbe court said, that tbe copy of tbe indictment in either one might be used, as it was tbe same in all; and that it made no difference whether tbe verdict of tbe jury was written on either transcript, or on a separate piece of paper; to which sayings and rulings of tbe court tbe prisoner also excepted. The prisoner then insisted, that tbe counsel for tbe State should select and designate which one of the three transcripts would be used on the trial, and objected to going to trial until such selection and designation were made; and the counsel for the State having, with the sanction of the court, and at its suggestion, selected the first (or original) transcript, the prisoner, by his counsel, objected to being tried on that record, on the same grounds hereinbefore stated to have been urged against its reception and use on the trial. But the court, without any correction or amendment of the record, other than that contained in and furnished by the two other transcripts above-mentioned, ruled, that the prisoner should be tried on the indictment set out in said original transcript; to which ruling of the court the prisoner excepted.” • “The State then introduced as a witness one J. Eslava, who testified, among other things, that the prisoner was a runaway at the time of the death of Boudet; that his owner’s agent obtained possession of the prisoner prior to the examination which was afterwards had, before two justices, touching the killing of said Boudet; that he (witness) was present at said examination; that the prisoner and Banty, another slave, were also present; that, to the best of his recollection, the prisoner was sworn and questioned by the justices; that the prisoner positively denied having had any part in the killing of the deceased; that having understood, in the course of the next morning, that the prisoner had made a confession to one Washington Nelson, he (witness) asked the prisoner, how he came to tell about the murder; that the prisoner replied, ‘he had had a dream last night, and saw the old man (referring to the deceased) so- visibly that he thought it best to tell’; and that the prisoner then made a statement, or confession, to him. The examination of said Eslava being then suspended by the court, at the request of the prisoner’s counsel, said Washington Nelson was introduced as a witness for the State. The prisoner objected to the witness being allowed to testify to the jury, as to any confessions made to him, until the State had first proved that the confessions thus offered were free and voluntary. Said witness, being then examined as to the circumstances under which said confessions were made, stated as follows: “ The prisoner and Banty, who were charged with the murder of the deceased, were brought before Nimrod Underwood and Joseph Nelson, justices of the peace in and for Baldwin county, sitting together in* their official capacity, for examination touching the murder of said Boudet. Said examination was had on the 27th April, 1858, about one week after the murder. At this examination, witness thought, but could not remember distinctly, that the prisoner was sworn, and made a statement to said magistrates, which was, then and there, reduced to writing by said Underwood. This written statement was found among the papers in the case, was produced, and submitted to the witness for inspection; and the witness said, that he could not remember what was said by the prisoner on that occasion, and could not say that said paper contained what was said by him. Said statement was not then, nor at any subsequent time during the trial, offered in evidence. Said witness further testified, that after said examination was over for the day, the prisoner was placed in his custody, as special constable, to be kept until the next day, when it was proposed to continue or renew the examination at another place; that the prisoner was in irons when he took charge of him, and was carried by him from the place where the examination was held, to the residence of his father, the said Joseph Nelson; that the witness and the prisoner were accompanied during this journey by several persons, among whom were the two said justices; that the two justices conversed wibh the prisoner, while on the way, respecting the murder ; that these conversations were held in the presence and hearing of the witness, but he could not say what they were; that said Joseph Nelson, while the prisoner was at his house that night, again conversed with him concerning the homicide; that this conversation also occurred in the presence and hearing of the witness, but he was unable to testify to anything that was said by said Joseph to the prisoner,and could not say whether or not any promises or threats were employed by said Joseph to induce the prisoner to confess; that on the next morning, while on their way to the place appointed for continuing the examination, witness was accompanied by said justices, and had the prisoner in Ms charge; that said justices conversed with the prisoner, during tMs journey, concerning the killing of the deceased; that these conversations were carried on in his hearing, but he was unable to say what was said, and could not state whether any promises or threats were employed by said justices to induce the prisoner to confess; that these conversations occurred, he thought, some hour or two previous to the time when the prisoner made a confession to Mm. Witness himself, he said, also talked to the prisoner this same morning in respect to his connection with the murder. He could not undertake to say that he remembered all that was said by him to the prisoner on this subject, nor could he remember the precise language he had used in this connection. As well as he could remember, he said to the prisoner in substance as follows: ‘If you are guilty„ it is better to say so, but, if you are not, we do not wish you to do so; truth is the best policy always.’ At the time witness made these remarks to the prisoner, they were both walking a little in advance of the rest of the company. After hearing them, the prisoner walked on a little way, with his head down, as if reflectmg, and then made to witness the conversation referred to. Witness had kept the prisoner, during the rnght before, chained up, with handcuffs on his wrists; but, a short time before the confession was made, had removed the handcuffs, because the prisoner complained that the irons hurt Mm. Beyond what he had said to the prisoner, as above set forth, witness made no promises or threats to the prisoner to induce a confession, nor did he know of any such being made by any one else. “The above being all the evidence of the witness on this point, the prisoner objected to the admission as evidence of any confession alleged to have been made by him to the witness; but the court overruled the objection, and permitted the witness to relate the confession made to Mm by the prisoner under the circumstances above detañed; to wMch ruling of the court the prisoner excepted. The witness then stated the confession made to him to be in substance as follows : The prisoner said, that he was cMlly, or had chills, and went to Ranty’s to get a dram, and asked Eanty to go to Louis' and get the whiskey; that Eanty replied, Bondet was sancy, and bad threatened to shoot him if he caught him about his place again; that Eanty said, he would go and kill ‘old Louis', and then get the whiskey; that he tried to dissuade Eanty from this course, and begged him not to kill the old man; that Eanty tried to persuade him, and after a while he consented to go, but said that he would not do anything to Boudet; that they took a jug, and went on their way to Boudet’s shop; that he walked behind Eanty in going and coming, and stepped in his tracks; that Eanty went into Boudet’s house, but he remained outside; that he heard Eanty give the old man the first blow, and the old man cried out, ‘ Oh! Oh!’ that he heard a second and third blow, and then went round to the door when Eanty was coming out; that Eanty went back, and got a knife to stab the old man; that he begged Eanty not to cut the old man, as he had served him bad enough; that Eanty replied, he had done so much he would finish him, and then stabbed him four or five times ; that he then went in, and hit the old man two licks with a spade; that Eanty then got whiskey from a big jug, and took some money from Louis’ cap, and some from over the door, and some from under a mattress; that Eanty gave him eleven dollars, and promised to give him more; that Eanty pulled the stick from under the old man, and threw it in a certain direction, and also the knife. And the witness said they afterwards found both as indicated. “The witness Eslava was then recalled by the State, and was asked to state a confession made by the prisoner to him. The witness replied, that a short time after the said confessions to Washington Nelson and Joseph Nelson, while witness, the prisoner, said Nelsons, and others, were on their way to the scene of the murder, to verify the said previous statements of the prisoner, witness asked the prisoner about said previous statements to the Nelsons ; that the prisoner was still in the custody of said Washington Nelson; and that he used no threats, nor held out any inducements to the prisoner, to make a confession. This being substantially all the evidence of the witness on this point, the prisoner objected to the witness being allowed. to give evidence of any confession made to bim under the circumstances mentioned, because tbe State bad not shown that such confessions were free and voluntary; but tbe court overruled tbe objection, and permitted tbe witness to state tbe confession made to bim by tbe prisoner; to which ruling of tbe court tbe prisoner excepted, “ Tbe witness Eslava then stated, that tbe confession made to bim by tbe prisoner was substantially as follows : Tbe prisoner said, that tbe old man bad appeared to bim tbe night before, and it was no use denying it any longer; that Banty bad been after bim a long time to kill tbe old man; that be made up bis mind tbe day be was killed, and went with Banty; and that they killed tbe old man, with a spade and a knife, between four and five o’clock on "Wednesday. Tbe witness stated, that tbe party found tbe stick and knife, as previously described by tbe prisoner, and that be immediately recognized them; that tbe prisoner also said, tbe tracks to and from Mrs. Weeks’ bouse and that of tbe deceased were bis, and that Banty went through tbe marsh barefooted, so as not to show bis tracks; that Banty stabbed tbe old man twice with tbe knife, and be (tbe prisoner) only hit bim twice with tbe flat of tbe spade; that Banty took tbe money, and gave bim eleven dollars, and told bim be would give bim more when tbe matter was bushed up. Tbe witness also testified, that tbe prisoner said Banty sawed a stick at bis bouse before they went to old Louis’; and that witness, with other gentlemen, went to Banty’s shanty, and found tbe other end of tbe stick; also, that they found, near tbe body of tbe deceased, a spade with blood on it. “ Tbe State then offered said Joseph Nelson as a witness, who testified, that be was a justice of tbe peace for Baldwin county, and co-operated with said Underwood in conducting the examination of tbe prisoner and Banty, upon a charge of murdering Boudet, on tbe 27th and 28th April, 1858, and beard tbe statement made by tbe prisoner before said examining court; that tbe first statement was made on said 27th April, and was then and there reduced to writing by bim as justice, and was made under oath by tbe prisoner.” (Tbe statement was here produced, and was identified by tbe witness, but was not offered in evidence on tbe trial.) “ Tbe witness then proceeded with bis testimony, as follows: ‘In tbe afternoon of said 27tb April, witness accompanied tbe prisoner, with said Underwood and others, while on tbe way, in tbe custody of said Washington Nelson, from tbe place of said examination, to tbe residence of witness, where tbe prisoner was to be kept that night, to await tbe examination on tbe next day before said justices. During this journey, witness conversed with tbe prisoner respecting tbe murder of Boudet; but be does not remember anything that be said to tbe prisoner in that conversation. Said Underwood, and others in tbe company, also conversed with him concerning tbe same matter; but witness could not remember anything that was 'said to tbe prisoner in said conversation. That night also, while tbe prisoner was at bis bouse in tbe custody of said Washington Nelson, witness again talked with him respecting said murder; but be could not remember what be said to tbe prisoner in that conversation. On tbe next morning, while on then’ way to tbe place of tbe adjourned examination, said Underwood and witness again talked with tbe prisoner, respecting tbe murder; but witness could not remember tbe remarks made by either himself or said Underwood on this occasion. These last conversations occurred shortly before tbe prisoner made bis said confession to Washington Nelson. During said journey, and just before tbe prisoner made said confession to Washington Nelson, tbe prisoner was walking with tbe said W. Nelson, a little in advance of tbe rest of tbe company. After proceeding some distance, said Washington Nelson and tbe prisoner stopped, and tbe rest of tbe company came up with them; and said W. Nelson then informed them that tbe prisoner bad made a confession to him. Witness did not know what bad passed between said W. Nelson and tbe prisoner while they were walking in advance of tbe rest of tbe company, or immediately previous to tbe making of said confession. When witness and tbe rest of tbe company came up, witness asked tbe prisoner, to tell them what be knew of tbe murder of tbe deceased; and tbe prisoner thereupon made a statement, implicating himself. Witness did not caution the prisoner against implicating himself. At the first examination, on said 27th April, 1858, witness instructed the prisoner, when he was sworn, to tell the truth. Witness made no promises or threats to the prisoner, to ind ie a confession by him. “ The prisoner, by his counsel, thereupon objected to the admission of said confession made to said witness, for the same reasons already urged to the admission of the statements made by him to said Washington Nelson and Eslava; and also for this additional reason, that said witness was a justice of the peace, and was associated with said Underwood in the examination of the prisoner on the charge of killing the deceased, and, while occupying this official position towards the prisoner, and while the examination of the prisoner before him on said charges was not yet completed, he failed to caution the prisoner against implicating himself in his said statements. The court overruled the objections, and the prisoner excepted. “ The witness then proceeded with his testimony, as follows : The prisoner’s confession was made to witness on the morning of April 28,1858. On the same day, in the afternoon, witness and said Underwood resumed their adjourned examination of the prisoner ill their official capacity aforesaid; and said Underwood, in the presence of witness, reduced to writing the confession which the prisoner had made to witness in the forenoon; which written statement was subscribed by the prisoner with his mark, sworn to before said Underwood, and attested by him. Said Underwood did not write down all that the prisoner had said to witness in said confession, but all that he deemed material at the time, and substantially all that the prisoner had stated to witness in said confession. The prisoner thereupon objected to any oral evidence of the confession alleged to have been made to said witness, because it appeared that the same had been reduced to writing soon after it was made, and had been sworn to and subscribed before said examining court as aforesaid. The court overruled the objection, and the prisoner excepted; and the court then allowed the witness to state to the jury the confession made to him by the prisoner, which the witness stated substantially as follows: ‘It is no use denying it any more; all we stated yesterday were lies, Banty and I pledged eacb other that we would not tell. I am convinced I am to be hung, because I dreamed last night that my two hands were fastened together, and were on fire; and that there was a book suspended before them, and it caught fire, and burned all the leaves. The book had a leather cover, just like the one you swore me on yesterday.* The witness then went on to state, that the prisoner said, that he went to Banty’s, and found him in his garden; that he asked him if he had any liquor in the house, as he was chilly; that he also asked Banty if old Louis had any tobacco, and that Banty replied he did not know; that he then said to Banty, ‘If you’ve got a picayune, I have another, and we can go down to old Louis’ and get whiskey; that Banty said, he had a boy there that was subject to fits, and he could not leave him; that he then promised to stay and take care of the boy, if Banty would go; that Banty then said, that old Louis was mad with him, and had threatened to shoot him, if he caught him about his place; that he then said, ‘Louis is a good old man, let’s go together, and he wont hurt you;’ that Banty then said he would go down and kill him, and he got down a saw, and sawed a stick at the end of his shanty; that he went with Banty, and begged him not to-hurt the old man, as he had been good and kind to him, and he would not like to see him hurt; that Banty declared he would kill him; that Banty went in when they got to the shop, while he remained outside; that he heard Banty give the old man two or three blows, and the old man cried out ‘Oh 1 Oh!’ that he went around to the door, and Banty was coming out, but went back again, and took a knife from a chest, and cut the old man four or five times; that he said to Banty, when Banty took up the knife, ‘ Don’t cut him, you have served him bad enough;’ that Banty said, he had gone thus far, and he would finish him;, that Banty took the stick from under the old man, and threw it in a certain direction, and also the knife; that all he had to do with it was, that he went in and hit the old man in the head twice with a spade, after Banty had cut him; that Banty got whiskey from a big jug, and some money over the door; that Banty gave him eleven dollars, and promised to give him more when the matter was hnshed up; that when they returned from Banty’s, he went in a certain direction to the piney woods; that Banty was barefooted, and stepped from turf to turf so as not to leave any of his tracks behind. The witness stated, also, that he found both the knife and the stick in the direction pointed out by the prisoner; that they afterwards went to Banty’s shanty, and found the piece from which the stick had been sawed, under the end of Banty’s shanty, and the saw-dust was also visible on the ground; that the prisoner also showed them where Banty had put the saw after sawing the stick, and, on examination, they found the saw in that place, and the prisoner recognized it; that they also found a barefooted track in the direction mentioned by the prisoner, which he said was Banty’s. There was also evidence, by several witnesses, as to the character of the wounds of the deceased, showing that there were indications of blows on his head, and stabs, as with a knife, about his chest.". The jury having returned a verdict of “ guilty as charged in the first count of the indictment,” the defendant moved in arrest of judgment, because the first count of the indictment did not allege that the offense was committed with malice aforethought; “ because the verdict of the jury finds him guilty of no certain offense known to the law;” and also on the following ground, as stated in the motion: “This defendant was tried at the fall term, 1860, of'this court, on the indictment purporting to have been found by the grand jury of Baldwin county, and sent up to this court by the clerk of said circuit court of Baldwin; at which said trial, the jury returned a verdict of ‘ guilty as charged in the first count of the indictment,’ and said nothing in respect to the second count in said indictment. At the present term of this court, the defendant was tried a second time upon said indictment; and, before proceeding to trial, the acting solicitor, at the instance of the court, entered a nolle-prosequi as to the second count in the indictment ; and, upon said second trial, the jury returned a verdict of guilty as charged in the first count.’ On the 28th May, 1868, at the present term of the court, the slave Eanty was tried on said indictment; and before trial, on demurrer filed by bis counsel, the said first count in the indictment was declared by this court to be insufficient, and the trial of said Eanty thereupon proceeded, by order of the court, on the second count in said indictment alone.” The defendant also moved “ that he be discharged by the court, on the ground that there is no indictment in this court against him, and he has been tried and convicted of no offense.” The motion in arrest of judgment, and the motion for a discharge, were both overruled by the court; but no exception was reserved to these rulings. James Bond, and Chaeles H. Mobse, for the prisoner. M. A. BaldwiN, Attorney-General, contra. [MAJORITY — STONE, J.] STONE, J. The record informs us, that copies of the indictment, and of the list of jurors summoned for the trial of the prisoner, were served on him two entire days before the day appointed for his trial. The prisoner was in actual confinement at the time. It is objected, that the service was not also upon the prisoner’s counsel, and that the papers, when served, were not read to the prisoner. There is nothing in either of these objections; the statute not requiring either of these .things to be done, unless, when the prisoner is not in actual confinement, the first named rule must be conformed to, in a certain contingency. — Code, § 3576. The question of the admissibility of the confessions of the accused, as evidence against him, is not materially different from the same question, as shown in the record when this case was formerly before us. We then held the confessions admissible, and we hold that the confessions disclosed in this record were competent evidence against the accused. — See Aaron v. The State, 37 Ala. The point made on the motion in arrest of judgment rests on the following facts: Aaron and Eanty, two slaves, were jointly indicted for killing Louis Boudet, a white man. The indictment contained two counts, one for unlawfully and maliciously killing, and the other for unlawfully and voluntarily killing the deceased. There was a severance, and tbe two defendants were tried separately. On tbe first trial of Aaron, tbe verdict was in tbe following language: "We, tbe jury, find tbe prisoner, Aaron, guilty as charged in tbe first count of tbe indictment.” Subsequently, tbe conviction bad upon that finding of tbe jury, against Aaron, was reversed by tbis court. At a later term, Aaron was again put on trial on tbe first count of said indictment, tbe proscuting attorney entering a nolle-proseqid on tbe second count; aud tbe prisoner was again found guilty. Between tbe rendering of tbe second verdict of guilty in Aaron’s case, and tbe sentence pronounced against bim, Banty bad bis trial in tbe same court, and at tbe same term. His demurrer to tbe first count of tbe mdictment was sustained; and be was tried and acquitted on tbe second count. Thereupon, Aaron moved in arrest of judgment; and tbe question is'] thus presented, Does tbe verdict rendered against Aaron on tbe first trial, being a virtual acquittal on tbe second count, so operate as to prevent any conviction of bim under tbis indictment, tbe two counts being each for one and tbe same offense, to-wit, voluntary manslaughter? Is it true, that being, by tbe implied acquittal on tbe second count, found not guilty of manslaughter, be cannot be convicted under tbe first count, which charges tbe same offense ? Such argument answers itself. Conceding both counts to be in manslaughter, and charging one and tbe same offense, if tbe verdict be held to be an acquittal of that offense, because it in effect finds tbe defendant not guilty under tbe second count; by tbe same line of argument, tbe verdict must be held to be an affirmation that tbe defendant is guilty of manslaughter, because it finds bim guilty of that offense under tbe first count. But we are not left to tbis fine of argument; for, although tbe two counts may alike charge tbe crime of voluntary manslaughter, and may be in law tbe same, they are widely different in fact, because maliciously and voluntarily are words of decidedly different signification. In such case, it is very clear that, if tbe jury bad expressly found tbe defendant guilty on tbe first count, and not guilty on tbe second, such finding, on a trial after reversal, could not be regarded as a bar to a second conviction on tbe first count. In wbat we have said, we do not wish to be understood as affirming, that an acquittal would necessarily have followed if the two counts had not differed materially in averment. The books abound with cases, in which the indictment contains several counts, each charging the same offense; and we are not aware that it has ever been ruled that, in such cases, there must be a conviction on each count, or there can not be on either. — See 1 Waterman’s Archbold, 93-4, and note 2. It is contended that the judgment should have been arrested, because there was, in fact, no indictment pending against Aaron; the first count having been pronounced defective, under Banty’s demurrer, and the second count having been nolle-prossed in Aaron’s case. There is nothing in this argument. The judgment of the court in Banty’s case could neither benefit nor prejudice Aaron’s rights. The judgment was res inter alios acta, and could not, in any way, affect the sufficiency of the indictment as against Aaron. Each count in the indictment was clearly good as a count in voluntary manslaughter; and if the first count contained unnecessary averments, its validity was not thereby impaired. The most that could result from such unnecessary averments, would be to hold the prosecuting attorney to the proof of it. — -See Johnson v. The State, 35 Ala. 363, and authorities cited. On the remaining question, we think the conviction must be reversed. When the venue, in a criminal case, is changed, the law makes it the duty of the clerk to make out a transcript, and forward it to the clerk of the county in which the trial is ordered to be had. — Code, § 3613. The defendant must be tried on the copy of the indictment so certified. — Code, § 3615. The copy of the indictment, thus certified, becomes the indictment on which the trial must be had; but it may be amended, or rectified, under the direction of the court to which the case is transferred, if necessary. A certified transcript of the record, not under the direction of the court, oí pursuant to certiorari, or a transcript made in another cause, can not be regarded as an omitted portion of the record certified, or, an error rectified, in compliance with the statute. — Code § 3615. The transcript certified by tbe clerk is so confused in dates, that it fails to satisfy us that it contains tbe caption of tbe grand jury by wbicb tbe indictment was found. Tbis may be, and probably is, a clerical error; but we fear to indulge in speculation, in cases as grave as tbe present. Tbe transcript should be rectified or amended, as tbe law points out. — See Aaron v. The State, 37 Ala.; Bramlett v. The State, 31 Ala. 376. Tbe judgment of tbe circuit court is reversed, and tbe cause remanded. Let tbe prisoner remain in custody, until discharged by due course of law.