Allen v. State

• Decision Date: 25 February 1941
• Docket Number: 7 Div. 559.
• Citation: 30 Ala.App. 147,2 So.2d 320
• Parties: ALLEN v. STATE.
• Court: Alabama Court of Appeals

2 So.2d 320

30 Ala.App. 147

ALLEN v. STATE.

7 Div. 559.

Alabama Court of Appeals

February 25, 1941

Rehearing Denied March 18, 1941.

Reversed on Mandate May 13, 1941.

Appeal from Circuit Court, Etowah County; J. H. Disque, Jr., Judge.

Certiorari granted by Supreme Court in Allen v. State, 2 So.2d 321.

Motley & Motley, of Gadsden, for appellant.

Thos. S. Lawson, Atty. Gen., and Prime F Osborn, Asst. Atty. Gen., for the State.

RICE Judge.

Appellant was tried under an indictment in words and figures as follows, to-wit:

"The Grand Jury of said county charges that before the finding of this indictment Bill Allen, whose true name is otherwise unknown, willfully, and without consent of the owner entered upon the land or property of Charlie Mitchell, and carried away therefrom 24 windows complete and 6 doors of the value of $36.00, the personal property of Charlie Mitchell contrary to law and against the peace and dignity of the State of Alabama."

Upon the trial, upon the close of the State's testimony making out a case fit to be submitted to the jury, the defendant (appellant) declined to offer any testimony; but contented himself with making a motion to exclude the testimony, followed by a request in writing that the court charge the jury that it could not find the defendant (appellant) guilty under the evidence, in other words that the court give to the jury the general affirmative charge to find in his favor.

Here on appeal after his conviction, the argument is made in appellant's behalf that the indictment, unchallenged in the court below, was void. And that hence the judgment of conviction must be reversed. Holt v. State, 86 Ala. 599, 5 So. 793.

It is true the indictment here, which the parties concede to be drawn under the provisions of Code 1923, Section 4905, Code 1940, Tit. 14, § 331; and purports to follow paragraph 5 of subsection 64 of Section 4556 of the Code of Alabama, 1923, Code 1940, Tit. 15, § 259, form 66, par. 5, the Code form of indictment prescribed for the offense with which defendant (appellant) was charged, does not contain the word knowingly where same occurs in the said Code form, or in the pertinent portion of Code Sec. 4905.

But it is the law that "if the indictment is framed under a statute [as here], which defines the offense created, and prescribes its constituents, it must allege in the words of the statute, or other words equivalent in meaning, all the statutory elements which are essentially descriptive of the offense." (Italics supplied by us.) Holt v. State, supra.

It is also true that an indictment substantially following the language of the Statute creating the offense, is not void. Oliver v. State, 16 Ala.App. 533, 79 So. 313; Worrell v. State, 12 Ala. 732; State v. Bullock, 13 Ala. 413; Nix v. State, 27 Ala.App. 94, 166 So. 716.

And that a plea of not guilty on arraignment waives defects in an indictment...