Jackson v. State

Decision Date15 January 1891
Citation8 So. 773,91 Ala. 55
PartiesJACKSON v. STATE.
CourtAlabama Supreme Court

Appeal from circuit court, Barbour county; J. M. CARMICHAEL, Judge.

The appellant here (defendant below) was indicted, tried, and convicted for the offense, as shown by the opinion, of attempting to feloniously take and carry away from the store-house of William W. Drewry money. The defendant demurred to the indictment on the ground that the nature of the attempt was not shown or specified, and because the indictment did not sufficiently set forth the offense. The court overruled the demurrer, and the defendant duly excepted. The other ruling of this court is sufficiently shown in the opinion.

Peach & Evans, for appellant.

W L. Martin, Atty. Gen., for the State.

COLEMAN J.

The record presents the question as to the sufficiency of the indictment. The indictment charges that Andrew Jackson "did attempt to feloniously take and carry away," etc. Mr. Wharton seems to hold that at common law, or in the absence of statutory provision, in an "indictment for an attempt to commit a crime it is essential to aver that the defendant did some act, to be averred, which, directed by a particular intent, would have apparently resulted, in the ordinary course of things, in a particular crime." 1 Whart. Crim. Law, § 192. He further holds that it is in the power of the legislature to pass statutes, declaring a particular act to be indictable, and providing that it shall be enough to describe such act in the statutory terms. When this is done, it is proper for the courts to hold that "an indictment charging that the defendant did attempt to feloniously steal from the house of A. B. is good." Id. § 191. The word "attempt" is among the adjudged words, and in this state has a defined legal meaning. "An attempt implies more than an intention formed. It means to make an effort or an endeavor or an attack." Gray v. State, 63 Ala. 73. An "attempt" implies an intent, and an actual effort to consummate the intent or purpose; "to try." Berdeaux v. Davis, 58 Ala. 612; Prince v State, 35 Ala. 367; Lewis v. State, Id. 381. The reason assigned by Mr. Wharton in his excellent work why an indictment is defective which charges merely an "attempt" to commit an offense, without an averment of any act, is that "attempts" may be merely " in conception, or in preparation," "with no causal connection between the attempt and the crime;" that it is a term "peculiary indefinite," "without any prescribed meaning," "and covers acts some of which are indictable and some are not;" and therefore, he concludes, all mere attempts are not indictable. 1 Whart. Crim. Law, §§ 190, 192. If Mr. Wharton's definition is correct, his conclusions legitimately follow; but if "attempt" implies both an intent and an actual effort to consummate the intent, as held in this state, an indictment for an "attempt" to commit an offense is not indefinite, and does not charge any act not penal. The reason given by him would apply with equal force in cases where "attempts" were made indictable by statute if, as is generally the case, the statute omits to legally define what acts amount to an "attempt." The principle upon which an indictment which merely charges an "attempt" to commit an offense is held good is that the word "attempt" has a legal meaning, is an adjudged word, and, therefore, when a person is indicted for an "attempt," he, in law, is as fully advised of what the indictment charges, as if the statute had defined with precision the acts necessary to constitute an "attempt." The statutes of this state have changed the common-law rules of criminal pleading, dispensing with many averments which were regarded as indispensable, reducing indictments rather to a statement of legal conclusions than of facts. Drake v. State, 60 Ala. 63; Code, § 4366 declare that the forms given in the Code are sufficient in all cases in which they are applicable. In other cases forms may be used as near similar as the nature of the case and the rules prescribed in this chapter will permit. "The indictment must state the facts constituting the offense in ordinary and concise language, in such manner as to enable a person of common understanding to know what is intended," etc. Code, § 4368. We have no statutory definition of an "assault." An indictment for a simple assault is good which merely charges that A. B. assaulted C.D. At common law it would have been necessary to...

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29 cases
  • Lawson v. State, CR-05-0010.
    • United States
    • Alabama Court of Criminal Appeals
    • August 25, 2006
    ...in a criminal case until the defendant has pleaded not guilty, or this plea has been entered for him by the court." Jackson v. State, 91 Ala. 55, 57-58, 8 So. 773, 774 (1891). In the intervening decades, this Court has intermittently been faced with similar situations and has held that reve......
  • Adkins v. State
    • United States
    • Supreme Court of Alabama
    • November 8, 1973
    ...that the indictment, because the name of the vendee was omitted, would not support the judgment of conviction.' In Jackson v. State, 91 Ala. 55, 8 So. 773 (1890), this court, per Coleman, J., (the grandfather of our present Justice Coleman), 'The statutes of this state have changed the comm......
  • May v. Lingo, 3 Div. 125
    • United States
    • Supreme Court of Alabama
    • September 10, 1964
    ...the merits in a criminal case until the defendant has pleaded not guilty or this plea has been entered for him by the court. Jackson v. State, 91 Ala. 55, 8 So. 773. The judgment of conviction being invalid, May's driver's license was improperly revoked. It follows that the trial court erre......
  • Strong v. State, 8 Div. 146
    • United States
    • Alabama Court of Criminal Appeals
    • August 24, 1971
    ...pending appeal.' 'Dated at Huntsville, Alabama, February 23, 1971. John D. Snodgrass John D. Snodgrass, Circuit Judge' In Jackson v. State, 91 Ala. 55, 8 So. 773, the opinion concludes as 'We find an error in the record, which compels a reversal upon other grounds. The record fails to show ......
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