Gandy v. State

• Decision Date: 04 January 1887
• Citation: 1 So. 35,81 Ala. 68
• Parties: GANDY v. STATE.
• Court: Alabama Supreme Court

1 So. 35

81 Ala. 68

GANDY v. STATE.

Supreme Court of Alabama

January 4, 1887

Appeal from criminal court, Greene county.

Prosecution for enticing away servant from employment.

James B. Head, for appellant.

T N. McClelland, Atty. Gen., contra.

SOMERVILLE J.

The defendant was tried in the court below, a tribunal having a concurrent jurisdiction with the circuit court of all misdemeanors, and was convicted of violating section 4325 of the present Code, as amended by the act of February 15, 1881 (Acts 1880-81, p. 42,) having reference to the offense of enticing away servants from their employment, under certain circumstances specified in the statute. The prosecution was commenced by a complaint before a justice of the peace, and the defendant was held to answer before the criminal court of the county of Greene, which mode of procedure seems to have been authorized by the act organizing this court. Acts 1884-85, p. 275, § 9. The affidavit of complaint charges, in general terms, that the defendant has committed the offense of "persuading" the affiant's daughter from his employment. It is very apparent that the complaint is wanting in that certainty of description which is necessary to constitute a formal accusation of crime, and would have been demurrable on this ground. But the record fails to show that any objection was taken to it, and the defendant thereby waived all amendable defects. Such a complaint, like an information at common law, but unlike an indictment, is amendable at the instance of the state, and without the consent, or even against the objection, of the defendant requiring, perhaps, a reverification by affidavit; but a new and different case cannot be introduced without the institution of a new prosecution. Tatum v. State, 66 Ala. 465; 1 Bish. Crim. Proc. (3d Ed.) §§ 714, 715, 721. If the complaint had been objected to, it might have been amended by alleging that the enticing was knowingly done, and either that the party enticed was a minor, or else that she had contracted in writing to serve the affiant. Acts 1880-81, p. 42.

We hold that, in a case like this, where the defendant has failed to object to any amendable imperfection or inaccuracy in the description of the offense, but proceeds to trial on the merits, it is too late for him to raise such objection for the first time in this court on appeal. This is in harmony with the policy of our statutes governing the review of the proceedings in the county court of this state, providing that ...