Benjamin v. State
| Decision Date | 11 May 1899 |
| Citation | 25 So. 917,121 Ala. 26 |
| Parties | BENJAMIN v. STATE. |
| Court | Alabama Supreme Court |
Appeal from city court of Mobile; O. J. Semmes, Judge.
George Benjamin was indicted, tried, and convicted for manslaughter in the second degree, and sentenced to hard labor for the county of Mobile for one year. After the return of the verdict by the jury in said cause, the defendant moved the court in arrest of judgment upon the following grounds: (1) The indictment fails to allege that said killing was negligently done by defendant; (2) the indictment fails to show that the killing was carelessly done; (3) that the indictment fails to allege that the killing was the result of negligence or carelessness on the part of defendant; (4) that the indictment in said case fails to allege or charge any offense. The indictment is copied in the opinion. This motion was overruled, and to this ruling of the court the defendant duly excepted; and this is the only question presented for review on the present appeal. Affirmed.
Saml. B. Browne and Winfield S. Lewis, for appellant.
Chas G. Brown, Atty. Gen., for the State.
The defendant was tried and convicted in the city court of Mobile for manslaughter in the second degree. The indictment charged that the defendant "unlawfully, but without malice or the intention to kill, killed Walter Phillips by shooting him with a pistol," etc. The form of indictment for manslaughter in the second degree is given in 2 Code, p. 332 and is as follows: "# 61. A. B. unlawfully but without malice, or the intention to kill, killed C. D. by negligently throwing a brick from the top of a house, etc. (or by negligently running over him with a horse, or by striking him with a stick, etc., as the case may be)." After verdict motion was made in arrest of judgment in the court below, and was overruled. It is insisted by appellant that the indictment is defective and open to demurrer, and, being demurrable, the motion in arrest of judgment should have been sustained. There can be no doubt of the proposition that an objection fatal on demurrer to an indictment will prevail on motion in arrest of judgment, 1 Brick. Dig. p. 517, § 962. The present indictment is in strict compliance with the last clause in the form prescribed. It is too evident to admit of question that the form prescribed in the Code was intended to cover manslaughter in the second degree, whether death was negligently caused or...
To continue reading
Request your trial
-
McGinnis v. State
...indicating that the sufficiency of the indictment to charge an offense may be raised by a motion in arrest. (See also Benjamin v. State, 121 Ala. 26, 25 So. 917; v. Harmon, 45 F. 414; Strickland v. State, 19 Tex. Ct. App. 518.) Under our code of criminal procedure the defendant may demur to......
-
Coker v. State
... ... and so marked on the charge ... The ... question therefore is, Does a request for the affirmative ... charge sufficiently challenge a void count in an indictment ... so that its submission to the jury notwithstanding will ... constitute reversible error? In Benjamin's Case, 121 Ala ... 26, 25 So. 917, Dowdell, J., speaking for the court said: ... "There can be no doubt of the proposition, that an ... objection fatal on demurrer to an indictment will prevail on ... motion in arrest of judgment. 1 Brick. Dig. 517, § 962." ... To the ... same ... ...
-
Bailum v. State
...State, 8 Ala.App. 79, 62 So. 983; Sanders v. State, 105 Ala. 4, 16 So. 935; Fitzgerald v. State, 112 Ala. 34, 20 So. 966; Benjamin v. State, 121 Ala. 26, 25 So. 917; Medley v. State, 156 Ala. 78, 47 So. 218; v. State, 4 Ala.App. 54, 58 So. 1008; Tidwell v. State, 70 Ala. 33; Thompson v. Sta......
- Marbury Lumber Co. v. Westbrook