Curry v. State

• Decision Date: 14 May 1929
• Docket Number: 4 Div. 501.
• Citation: 122 So. 298,23 Ala.App. 182
• Parties: CURRY v. STATE.
• Court: Alabama Court of Appeals

122 So. 298

23 Ala.App. 182

CURRY v. STATE.

4 Div. 501.

Court of Appeals of Alabama

May 14, 1929

Appeal from Circuit Court, Houston County; H. A. Pearce, Judge.

Son Curry was convicted for manslaughter in the first degree, and he appeals. Affirmed, and remanded for proper sentence.

Lee &amp Tompkins, of Dothan, for appellant.

Charlie C. McCall, Atty. Gen., for the State.

BRICKEN P.J.

The first insistence of error is based upon the action of the court in overruling demurrer to the indictment. By the demurrer it was insisted that the indictment charged no offense, in that the word "atorethought"-intended for "aforethought"-is meaningless and rendered the indictment bad. In charging murder in the second degree it is necessary to charge that the alleged killing of deceased by the defendant was done unlawfully and with malice aforethought (stating the means of killing), but without premeditation or deliberation. The indictment here complies with every requirement of law in charging murder in the second degree, except, as stated, the letter "t" is used instead of the letter "f" in the word "aforethought." By overruling the demurrer the lower court took the position that the defect complained of was a mere clerical misprision, and in this we think the court was correct. An indictment may not be vitiated by a clerical misprision, or grammatical error, unless such discrepancy changes the words or obscures the sense. The patent clerical error here complained of does not come within this rule, as there can be no doubt as to the word intended, and its sense is not obscured nor is the tendency of the error to mislead. The rule is "Before an objection because of false grammar, incorrect spelling, or mere clerical error, is entertained, the court should be satisfied of the tendency of the error to mislead or to leave in doubt as to the meaning a person of common understanding, reading, not for the purpose of finding defects, but to ascertain what is intended to be charged." Grant v. State, 55 Ala. 201, 207.

The excellent oral charge of the court correctly and fully stated the law of self-defense and explained the several elements thereof. This charge fairly and substantially covered charge refused to defendant, thus rendering its refusal without error.

Under the evidence in this case the affirmative charge requested by defendant was properly refused, and the question as to the effect of the blow upon...