Bridgeforth v. State

• Decision Date: 03 June 1924
• Docket Number: 8 Div. 142.
• Citation: 100 So. 564,20 Ala.App. 20
• Parties: BRIDGEFORTH v. STATE.
• Court: Alabama Court of Appeals

100 So. 564

20 Ala.App. 20

BRIDGEFORTH v. STATE.

8 Div. 142.

Court of Appeals of Alabama

June 3, 1924

Appeal from County Court, Morgan County; W. T. Lowe, Judge.

Alice Bridgeforth was convicted of possessing prohibited liquors and appeals. Reversed and remanded.

S. A Lynne, of Decatur, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

FOSTER J.

The prosecution was commenced by affidavit in which the defendant was charged with having in her possession "prohibed" liquors contrary to law. A demurrer was interposed to the affidavit, one of the grounds assigned being "that it fails to aver that the defendant had prohibited liquors in her possession contrary to law."

In Wood v. State, 50 Ala. 144, the indictment charged that the defendant "unlawfully and with malice aforethought" assaulted another with intent to murder him. The court said:

"No doubt, the county solicitor by a slip of the pen omitted the letter '1' from the word which he intended to write, leaving it 'maice' instead of 'malice;' but such a mistake cannot be supplied by intendment. The word 'malice,' or some other word or words conveying the same meaning, must be used in an indictment for an assault with intent to murder. Rev. Code 809, form No. 14. If one departure from the prescribed forms is permitted, another and another will soon be asking for the same grace, until the whole system will end in an unintelligible jumble of words unknown to the law and the purpose of criminal procedure. It is best to hold to the prescribed forms. 'Via trita est tutissima."'

In Griffith v. State, 90 Ala. 583, 8 So. 812, the indictment charged that the killing was done unlawfully and "with malice aforethou" instead of "aforethought." The court there said:

"The omission of the letters 'g h t' from the word 'aforethought,' in the second count of the indictment, scarcely comes within the rule. Though a clerical omission, which does not change the word into another of different import, it leaves a collection of letters forming no word of any significance whatever, and incapable of like sound. A lawyer would understand what was intended to be charged, but one of ordinary intelligence would be left in doubt as to the meaning. The specified letters being omitted, the count does not allege that the killing was with malice aforethought, which is essential to charge the offense of murder."

In Parker v. State, 114 Ala. 690, 22 So. 791, the indictment charged that the defendant with intent to steal broke into and entered "the dwell house" of another, and the court held that the omission of the letters "ing" from the word "dwelling," being a matter of substance, destroyed the legal sufficiency of the indictment. The court in this case said:

"The indictment in this case was fatally defective and the motion in arrest of judgment should have been granted. ***

"Unless we depart from these decisions, we must hold the indictment bad in the present case. Great precision should be preserved in matters which vitally affect the life and liberty of the citizen; and we are not willing to relax the rule in this respect laid down by our predecessors."

The omission of the letters "i t" from the word intended to be written "prohibited" in the affidavit, destroyed its legal sufficiency. "Prohibed" is merely a collection of letters forming no word of any significance whatever. The demurrer to the affidavit should have been sustained.

Section 32 of an act of the legislature of Alabama, prescribing the qualifications of jurors and regulating their selection approved September 29, 1919 (Acts 1919, p. 1040), reads in part as follows:

"Upon the trial by jury in any court of any person indicted for a misdemeanor, or felonies not punished capitally, or

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