Ex parte Dowdy
| Decision Date | 13 December 1923 |
| Docket Number | 8 Div. 620. |
| Parties | EX PARTE DOWDY. v. STATE. DOWDY |
| Court | Alabama Supreme Court |
Certiorari to Court of Appeals.
Lee Dowdy was convicted of an offense, and on appeal to the Court of Appeals the judgment of his conviction being affirmed, he brings this petition for certiorari to the Court of Appeals to review and revise the judgment and decision there rendered in the case styled Lee Dowdy v. State, 98 So. 365. Writ awarded, and reversed and remanded on rehearing.
Street & Bradford, of Guntersville, for appellant.
Harwell G. Davis, Atty. Gen., for the State.
The defendant was indicted for abortion under section 6215 of the Code of 1907, as amended by the Act of 1911, page 548, and the Code does not prescribe a form of indictment. In construing this statute and passing upon an indictment thereunder in the case of Thomas v. State, 156 Ala 166, 47 So. 257, we held that the indictment was sufficient if the offense was described in the language of the statute or in words conveying the same meaning, and that it was not necessary to name the drug or describe the instrument. It must be observed, however, that the indictment in the Thomas Case, supra, did not, as here, contain the further alternative averment of "or other means." While the statute mentions other means, and while the instrument or drug need not be described, yet it is a well-established rule of criminal pleading that the other means should be named, or else it should be averred that the same was unknown to the grand jury. Hornsby v State, 94 Ala. 55, 10 So. 522; Smith v. State, 142 Ala. 14, 39 So. 329. Indeed, section 7144 of the Code of 1907, recognizes the necessity of naming the means when known, by authorizing the indictment to charge that they are unknown when such is the case. If there was no need for naming the means, there would be no need for said section and which is applicable to all indictments, whether for common law or statutory offenses, and our form of indictments contemplate the naming of the means by which an offense is committed. The second count of the indictment was demurrable for not naming the other means relied on or averring that the same was unknown to the grand jury. Cases, supra; also Johnson v. State, 32 Ala. 583; Rogers v. State, 117 Ala. 192, 23 So. 82.
The Court of Appeals erred in holding that the second count of the indictment was not subject to the defendant'...
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McGowan v. State
...is asked under the evidence, and the solicitor did not transcend legitimate bounds of argument."), rev'd on other ground, 210 Ala. 419, 98 So. 367 (1923). Based on the foregoing, we find that the prosecutor did not commit plain error by his final remarks about the jury's oath. He did not, "......
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McGowan v. State, No. CR-95-1775 (Ala. Crim. App. 12/12/2003)
...is asked under the evidence, and the solicitor did not transcend legitimate bounds of argument."), rev'd on other ground, 210 Ala. 419, 98 So. 367 (1923). Based on the foregoing, we find that the prosecutor did not commit plain error by his final remarks about the jury's oath. He did not, "......
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Bradfield v. State, 8 Div. 239
...because 'instrument or other means' was too indefinite and failed to aver that it was otherwise unknown to the grand jury, Ex parte Dowdy, 210 Ala. 419, 98 So. 367; a first degree murder indictment charging defendant with having killed a certain person by giving him poison or administering ......
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Bradfield v. State, 8 Div. 239
...because 'instrument or other means' was too indefinite and failed to aver that it was otherwise unknown to the grand jury, Ex parte Dowdy, 210 Ala. 419, 98 So. 367; a first degree murder indictment charging defendant with having killed a certain person by giving him poison or administering ......