Griffin v. State

Decision Date13 March 1928
Docket Number7 Div. 401
Citation22 Ala.App. 369,115 So. 769
PartiesGRIFFIN v. STATE.
CourtAlabama Court of Appeals

Appeal from De Kalb County Court; E.M. Baker, Judge.

Sanders Griffin was convicted of violating the prohibition law, and he appeals. Reversed and remanded.

Chas. J. Scott, of Ft. Payne, for appellant.

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

BRICKEN P.J.

Under the statutes of this state, when offenses are of the same character and subject to the same punishment, the defendant may be charged with the commission of either in the same count in the alternative. Also, when the offense may be committed by different means, or with different intents, such means or intents may be alleged in the same count in the alternative. Sections 4544, 4546, Code 1923. However, when so charged in the alternative, each alternative must state a complete offense under the law. May's Case, 89 Ala. 37, 8 So. 28; Hornsby v. State, 94 Ala. 55, 10 So. 522.

Count 4, in the indictment in this case, was defective, in that the first alternative averment charged that the defendant did buy, etc., prohibited liquors. This averment, standing alone charged no offense under the laws of Alabama. Code 1923, § 4621. Under the authorities above cited, this alternative averment rendered the count as a whole defective. The demurrers interposed to this count of the indictment pointed out specifically this defect, and should have been sustained. The court, however, overruled the demurrers, and thereby committed error to a reversal, for the law is:

"The overruling of a demurrer to a defective count in an indictment is an error for which the judgment of conviction will be reversed, although the indictment also contained several good counts, and there was a general verdict of guilty." Pairo v. State, 49 Ala. 25 (second headnote); Hornsby's Case, supra; Winchester v State, 20 Ala.App. 431, 102 So. 595.

The contention that the indictment is invalid because not signed by the solicitor is without merit. An indictment receives its legal efficacy from being found and returned into court by a grand jury; and it is not necessary, to its validity, that it be signed by the solicitor, or any one acting for him. Prince v. State, 140 Ala. 158, 37 So. 171; Baker v. State, 18 Ala.App. 510, 93 So. 270. The indictment here contains the indorsement, "A true bill. W.E. Hurt Foreman of Grand Jury." This indorsement properly authenticates the indictment.

...

To continue reading

Request your trial
16 cases
  • Doss v. State
    • United States
    • Alabama Court of Appeals
    • 16 April 1929
    ...each alternative must state a complete offense under the law, and a failure so to do renders the entire count defective. Griffin v. State, 22 Ala. App. 369, 115 So. 769. As general rule, the form of indictments to be found in the Code is sufficient, but an indictment that follows the Code f......
  • Gayden v. State, 3 Div. 970
    • United States
    • Alabama Court of Appeals
    • 31 August 1954
    ...the evidence supports its averments. Hawes v. State, 216 Ala. 151, 112 So. 761; Jones v. State, 236 Ala. 30, 182 So. 404; Griffin v. State, 22 Ala.App. 369, 115 So. 769; Crow v. State, 35 Ala.App. 606, 51 So.2d These three positions are posed in appellant's brief in support of the insistenc......
  • Young v. State
    • United States
    • Alabama Court of Criminal Appeals
    • 26 July 1977
    ...numbers 11 and 12 listed above, because the count, being bad in part, is bad in the whole. Horton v. State, 53 Ala. 488; Griffin v. State, 22 Ala.App. 369, 115 So. 769. We must be ever mindful that the right of an accused to demand the nature and cause of the accusation is one of the corner......
  • Jinright v. State
    • United States
    • Alabama Supreme Court
    • 5 December 1929
    ... ... to which they are applicable. Code, § 4556. Notwithstanding ... this statute, the Court of Appeals takes the view that the ... form prescribed is fatally defective, when assailed by ... demurrer ... Following ... the former decision of that court in Griffin v ... State, 22 Ala. App. 369, 115 So. 769, it is held the ... alternative averment that the accused "did buy ... prohibited liquors" charges no offense known to the law ... On this premise the further holdings in the opinion under ... review are predicated ... Is the ... premise ... ...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT