Ex parte State

• Decision Date: 19 October 1916
• Docket Number: 4 Div. 661
• Citation: 197 Ala. 419,73 So. 35
• Parties: Ex parte STATE. v. STATE. BROOMS
• Court: Alabama Supreme Court

73 So. 35

197 Ala. 419

Ex parte STATE.

BROOMS v. STATE.

4 Div. 661

Supreme Court of Alabama

October 19, 1916

Certiorari to Court of Appeals.

Application by the State of Alabama for certiorari to the Court of Civil Appeals to review its judgment (72 So. 691) reversing and remanding on appeal of Hugh Brooms from a conviction in the circuit court for violating the prohibition law. Application denied.

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

ANDERSON C.J.

I think that the holding of the Court of Appeals is correct, and that the writ should be denied. I think that, when an indictment contains several counts, there would be no election and proof, and a conviction can be had under each count. When however, an indictment contains a single count and a single charge, there cannot be proof of but one offense, but if in a single count several offenses are charged in the alternative, or the same offense is alternatively charged as having been committed in different ways, there may be proof of each alternative, but after the state closes its evidence the defendant can require an election as to the alternative upon which it will seek a conviction. Scruggs v. State, 111 Ala. 60, 20 So. 642.

MAYFIELD J. (concurring).

I concur in denying the application of the state for certiorari in this case, but do not desire to commit myself to the proposition that the defendant, in all cases in which he is properly charged with several misdemeanors in the alternative, in one count of the indictment, has the right to require the state to elect as to which of the offenses so charged it will seek a conviction.

Section 7151 of the Code authorizes two or more offenses to be so charged in one count; while at common law each count was required to state but one offense, though several offenses of the same character could be joined in one indictment. The statute, however, does not affect the doctrine of election; it remains the same whether several offenses be charged in one count or in different counts, provided, however, the indictment as a whole only attempts to charge one act, which may constitute one or more of several offenses. Where an indictment charges several different acts, and each of itself constitutes an offense, then there can be no election as to which count the state will proceed upon for a conviction; but the state in such case, having charged several offenses, and charged that each was based on different facts or acts, may proceed to conviction under each and all, if it can produce the proof. No such offenses can be charged in one count, and an attempt to do so would render the indictment bad on demurrer. The statute only authorizes two or more to be charged in one count, in the alternative, not in the conjunctive. An indictment under the statute charges one wrongful act or transaction, but charges that it was one or the other of two or more offenses, not that it was all of the offenses named in the alternative, that was committed. In such case, if the state attempts to prove more than one separate and distinct transaction, and seeks a conviction as for all, this is not allowable; but the defendant may require the state to elect as for which transaction it will seek a conviction. This for the reason that only one transaction was alleged, and it was alleged to constitute one or the other of the offenses charged in the alternative. It was not alleged that all were committed, but one of the several. The allegations in such cases are like those where the indictment contains several counts, but each count describes or refers or relates to but one transaction, and the several counts are so framed as to meet the various phases or tendencies of the evidence as to the transaction alleged. Several counts in such cases are to some extent unlike those where several distinct and separate transactions are alleged or described in separate counts, each charging not only a separate crime, but a separate and distinct transaction. In such case the prosecution, of course, could offer evidence as to each transaction, though separate and disconnected, but could not have a conviction as for several offenses; but if only one transaction is alleged or indicted, whether in separate counts or in alternative counts, only the one indicted should be inquired into; the defendant ought not to be put on trial as to a transaction or matter of which he was not charged. In such case the prosecution ought to be confined to proof of one transaction, because only one is charged; but evidence which presents it in different phases ought to be allowed, because it is so alleged.

The true rule as to the doctrine of election has probably never been more fully nor better stated than by Brickell, C.J., in Wooster's Case, 55 Ala. 217. In that case several misdemeanors were joined, but joined in separate counts; and it was there said:

"There was, however, no misjoinder of counts. The rule to which the counsel of appellant refers, extracted from former decisions of this court--that two offenses committed by the same person may be included in the same indictment, in different counts, only when they are of the same general nature, and belong to the same family of crimes, and where the mode of trial and nature of punishment are also the same--obtains only in cases of felony. In such cases no objection to the indictment for a misjoinder can be made by demurrer. A motion to the court to compel an election of the counts on which a conviction will be sought is the only right of the accused. 1 Arch.Cr.Pl. & Pr. 94, 95. The motion will always be granted, or the court, of its own motion, will interfere, by quashing the indictment, when an attempt is made, as manifested either by the indictment or the evidence to convict the accused of two or more offenses growing out of distinct and separate transactions. The court ought not and will not interpose when the joinder is intended and calculated to meet the different aspects in which the evidence may present a single transaction, or a single offense. Mayo v. State, 30 Ala. 32. This practice of compelling an election, or of quashing the indictment, if there was failure or refusal to elect on which count or counts a conviction would be claimed, never prevailed in reference to misdemeanors. I Arch.Cr.Pl. & Pr. 94, 95; 1 Bish.Cr.Pr. §§ 448, 449, 452; 1 Wharton's Am.Cr.Law, 414; Kane v. People, 8 Wend. (N.Y.) 203; Commonwealth v. Birdsall, 69 Pa. 482 . It is, of consequence, a general rule of the common law, prevailing here in the absence of a statute changing it, that 'two or more misdemeanors, growing out of separate and different transactions, may in different counts be joined in the same indictment.' 1 Bish.Cr.Pr. § 452; 1 Whart.Am.Cr.Law, § 414; 1 Arch.Cr.Pl. & Pr. 94, 95; People v. Costello, 1 Denio (N.Y.) 90; Kane v. People, supra; Commonwealth v.

Gillespie, 7 Serg. & R. (Pa.) 469, 10 Am.Dec. 475. The court in cases of such joinder should doubtless exercise great care to protect the accused from embarrassment in his defense. But there is no legal objection to it. Here the offenses were of the same nature, and the joinder may have been necessary to meet the varying phases of the evidence. It would be difficult to affirm that the rule applicable in indictments for felonies would have required the court to interpose, either by compelling an election, or by quashing the indictment. The two offenses are of the same nature, and are so near akin that a joinder may be necessary to the due administration of the criminal law. The case of Norvell v. State, 50 Ala. 174, is in conflict with our views, and must be overruled." In Sampson's Case, 107 Ala. 76, 18 So. 207, the offenses were charged in the alternative in one count, and a general verdict was held good, if supported by either alternative. It was there held that:

"On a conviction under an indictment charging different offenses, properly joined under the statute, it is not necessary that the jury should express ipsissimis verbis the offense of which they find the defendant guilty, but, if the duty of fixing the punishment rests with the jury, and, in discharge of such duty,

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