O'Brien v. State

• Decision Date: 15 December 1890
• Citation: 8 So. 560,91 Ala. 25
• Court: Alabama Supreme Court
• Parties: O'BRIEN v. STATE.

8 So. 560

91 Ala. 25

O'BRIEN v. STATE.

Supreme Court of Alabama

December 15, 1890

Appeal from city court of Anniston; B. F. CASSADY, Judge.

Code Ala. § 4376, provides "that the indictment must be certain as to the person charged; but, when his name is unknown to the grand jury, it may be so alleged without further identification."

W. P O'Brien was indicted and convicted for selling intoxicating liquors without a license. The court charged the jury "that if they believed from the evidence, beyond a reasonable doubt, that the defendant, within twelve months before the finding of the indictment, and within precinct 15 Calhoun county, Ala., sold whisky in less quantity than a quart, without a license and contrary to law, they must find him guilty, but, if from the evidence they have a reasonable doubt of his guilt, they must acquit him." Defendant excepted, and appeals.

Kelly & Smith, for appellant.

W L. Martin, Atty. Gen., for the State.

COLEMAN J.

Objection is made to the form of the indictment, in that it charges "that W. P. O'Brien, whose Christian name is to the grand jury unknown." It is very clear that the grand jury used the letters, "W. P." as initial letters of a name, and not as a name. The use of the words immediately thereafter, "whose Christian name is unknown," is conclusive of this question. It is an averment by the grand jury that the defendant has a Christian name, not expressed by the letters used, but which to the grand jury was unknown. This ruling is entirely consistent with the case of Jones v. State, 63 Ala. 28, and Garrish v. State, 53 Ala. 480. The allegation in the indictment was authorized by section 4376 of the Code. A nolle prosequi, before the defendant has been placed in jeopardy by the impaneling and swearing the jury, and the entering of his plea, does not absolve the defendant from liability from further prosecution for the same offense. Its only effect is to end the then prosecution. Walker v State, 61 Ala. 32. The defendant was indicted for selling whisky without a license, and contrary to law. It appears there were three indictments pending against the defendant, each charging him with a violation of law substantially in the same language. At common law, it was necessary to lay some definite time in an indictment. This is not required under the statute, unless "time is in some way a material ingredient of the offense." It is sufficient, under the statute, to charge that the offense was committed before the finding of the indictment. McDade v. State, 20 Ala. 82; Code, § 4373. Each sale of whisky without a license is a separate offense, for which the offender is liable to separate indictment. The proof must show that the offense was committed within the period prescribed by law for such prosecution. Code, § 4037. Two of the three indictments had been disposed of by nolle prosequi. On the trial of the third, the defendant offered to introduce testimony to show that the state's witness in the present trial was before the grand jury, and that he testified before that body of two separate offenses, and that his name appeared as the state witness on the two indictments disposed of by nolle prosequi. The defendant further offered to prove by another witness, whose name appeared on the...