Jenkins v. State
| Decision Date | 04 December 1973 |
| Docket Number | 4 Div. 217 |
| Citation | 51 Ala.App. 521,287 So.2d 233 |
| Parties | Jerry JENKINS v. STATE. |
| Court | Alabama Court of Criminal Appeals |
Charles L. Woods, Ozark, for appellant.
William J. Baxley, Atty. Gen., and Otis J. Goodwyn, Jr., Asst. Atty. Gen., for the State.
A jury found appellant-defendant guilty of selling amphetamine as charged in an indictment, to which he had pleaded not guilty. The trial court rendered judgment accordingly and sentenced him to imprisonment in the penitentiary for a period of five years.
The two major contentions of appellant are (1) that defendant's demurrer to the indictment should have been sustained by reason of the failure of the indictment to name or identify the person to whom the amphetamine was allegedly sold and (2) that the trial court should have permitted a reading to the jury of some of the testimony in the case, after the case had been submitted to the jury.
In pertinent part the indictment charged that defendant 'did possess, sell, furnish, or give away Amphetamine, contrary to law, against the peace and dignity of the State of Alabama.'
The demurrer to the indictment contained the following grounds:
'1. That it does not state facts sufficient to constitute a cause of action against this defendant.
2. That it is vague, indefinite and uncertain and does not apprise this defendant with sufficient certainty against what act or acts the defendant is called upon to defend.
3. That it is vague, indefinite and uncertain certain and does not apprise this defendant with sufficient certainty as to the time or times that defendant is alleged to have committed the criminal act or acts.
4. That it is vague, indefinite and uncertain and does not advise the accused of the nature and cause of the accusation against him in order that he may meet the accusation and prepare for his trial.'
Appellant takes the position that the indictment was defective in failing to identify the vendee of the drug and that grounds 1 and 4 of the demurrer 'fully raise the point of omission of the name of the vendee and that by overruling this demurrer the trial court committed reversible error.' Among other cases, appellant cites the opinions of both courts in Duin v. State, 47 Ala.App. 693, 260 So.2d 599, and 288 Ala. 329, 260 So.2d 602. In granting certiorari to review the decision of the Court of Criminal Appeals, the Supreme Court stated as follows:
'In view of the statutory allegations in the indictment that substantially follow the language of the statute, we cannot agree with the Court of Criminal Appeals that the indictment, because the name of the vendee was omitted, would not support the judgment of conviction.
We must, and will gladly, follow the Supreme Court to the end of the road it has laid out for us.
Appellant candidly recognizes that no ground of demurrer to the indictment sets forth definitely that the indictment does not identify the buyer of the amphetamine but insists that, as the statute (Title 7, § 236, Code of Alabama 1940) abolishing general demurrers in civil causes at law does not apply to criminal pleadings (as held in King v. State, 45 Ala.App. 71, 224 So.2d 254), grounds 1 and 4 of the demurrer were sufficient to raise the point now made as to the claimed necessity for identification, by name or otherwise, of the vendee.
Whatever difference is to be found between the requirements of specificity of grounds of demurrer to an indictment and grounds of demurrer to a complaint in a civil case at law before adoption of Alabama Rules of Civil Procedure, we are not convinced that a demurrer that assigns no special or specific ground is sufficient to reach every conceivable defect in an indictment. We find no case to that effect. Indicating otherwise are Harris v. State, 248 Ala. 389, 27 So.2d 797; Flanigan v. State, 247 Ala. 642, 25 So.2d 685; Gray v. State, 30 Ala.App. 190, 6 So.2d 901. To hold that the grounds of demurrer asserted and relied upon on this appeal are sufficient would in effect be to hold that the statements therein are correct, which is not correct. According to the opinion of the Supreme Court in Duin, supra, it is not correct that the indictment 'does not state facts sufficient to constitute a cause of action against this defendant.' The Supreme Court in that case held otherwise. It held that the facts stated were sufficient to support a conviction....
To continue reading
Request your trial
-
Gaddy v. State
...Smith v. State, 57 Ala.App. 164, 326 So.2d 692, 694 (Cr.App.1975), cert. denied, 295 Ala. 419, 326 So.2d 695 (1976); Jenkins v. State, 51 Ala.App. 521, 287 So.2d 233 (1973). The appellant acknowledges that a trial court's decision to honor a specific request by a jury that portions of the t......
-
Harris v. State
...undue emphasis will not be placed on portions of the testimony. Mullins v. State, Ala.Cr.App., 344 So.2d 539 (1977); Jenkins v. State, 51 Ala.App. 521, 287 So.2d 233 (1973). It is clear that in following its sound discretion, the trial court followed this procedure to avoid any additional w......
-
Mullins v. State
...read to the jury after their retirement and upon their request. Broglan v. State, 23 Ala.App. 219, 123 So. 109; Jenkins v. State, 51 Ala.App. 521, 287 So.2d 233. After the jury has reported its inability to agree on a verdict it is incumbent on the trial judge to exercise extreme care in re......
-
Hammes v. State
...is a matter addressed to the sound discretion of the trial court. Cooper v. State, 340 So.2d 91 (Ala.Cr.App.1976); Jenkins v. State, 51 Ala.App. 521, 287 So.2d 233 (1973). There was no abuse of the trial court's discretion, in our view, in honoring appellant's all or none request by refusin......