Brown v. State

• Decision Date: 23 March 1917
• Docket Number: 8 Div. 520
• Citation: Brown v. State, 15 Ala.App. 611, 74 So. 733 (Ala. App. 1917)
• Parties: BROWN v. STATE.
• Court: Alabama Court of Appeals

74 So. 733

15 Ala.App. 611

BROWN v. STATE.

8 Div. 520

Court of Appeals of Alabama

March 23, 1917

Appeal from Law and Equity Court, Morgan County; Thomas W. Wert Judge.

Herman Brown was convicted of crime, and appeals.Affirmed.

W.T. Lowe, of Decatur, for appellant.

W.L Martin, Atty. Gen., and Harwell G. Davis, Asst. Atty. Gen for the State.

BROWN P.J.

The judge of the trial court, at the instance of appellant, has caused the original indictment, duly authenticated by the clerk, to be transmitted to this court for inspection under Supreme Court rule of practice 24.Code 1907, p. 1511.This practice has been approved.Watkins v. State,89 Ala. 82, 8 So. 134;Griffith v. State,90 Ala. 5838 So. 812;Sanders v. State,2 Ala.App. 13, 56 So. 69;Flowers v. State,2 Ala.App. 65, 56 So. 98.

The indictment, omitting the caption and the signature of the solicitor, is in these words:

"The grand jury of said county charge that before the finding of this indictment Herman Brown, against the order of nature cornally knew Felix Taylor, against the peace and dignity of the state of Alabama."

The defendant demurred to the indictment, assigning the grounds: "(1) Charges no offense against this defendant.""(2) It fails to aver that the defendant carnally knew Felix Taylor."There is no such word in the English language as "cornally."This combination of letters, when the letter "o" is given the short sound as in "not," is capable of being sounded or pronounced much like the word "carnally"; and, on the authority of the following cases, we hold that the misspelling of this word in the indictment does not render the indictment misleading or subject to demurrer.Griffith v. State, supra;Flowers v. State,2 Ala.App. 65, 56 So. 98;Sanders v. State, supra.

The court charged the jury in the oral charge, among other things:

"The law requires the defendant to be proven guilty beyond a reasonable doubt and to a moral certainty before a conviction can be had; but that does not mean the state must prove the defendant guilty beyond all doubt, or prove it to a mathematical certainty.It is not a whimsical doubt or possible doubt or speculative doubt; but it is a doubt based upon a reasonable foundation."

The defendant excepted to that part of the charge italicized, and insists that the court said no more than that "a reasonable doubt is a reasonable doubt."If we concede this contention, it would not be reversible error.Malchow v. State,5 Ala.App. 9959 So....