Jinright v. State

• Decision Date: 07 May 1929
• Docket Number: 4 Div. 482.
• Citation: 125 So. 604,23 Ala.App. 351
• Parties: JINRIGHT v. STATE.
• Court: Alabama Court of Appeals

125 So. 604

23 Ala.App. 351

JINRIGHT v. STATE.

4 Div. 482.

Court of Appeals of Alabama

May 7, 1929

Rehearing Denied June 25, 1929.

Affirmed on Mandate Jan. 7, 1930.

Appeal from Circuit Court, Coffee County; W. L. Parks, Judge.

Jim Jinright was convicted of violating the prohibition law, and he appeals. Reversed and remanded.

J. C Fleming, of Elba, for appellant.

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

BRICKEN P.J.

The indictment returned by the grand jury against this appellant and another, not on trial, was defective as to each count, in that the several offenses charged therein were in the alternative, and there were certain alternative averments contained therein which failed to state any offense known to the law. 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. But, when this is done, each alternative averment must state a complete offense. In other words, each alternative averment must present an indictable offense, or the indictment is insufficient. Hornsby v. State, 94 Ala. 55, 62, 10 So. 522; Griffin v. State, 22 Ala. App. 369, 115 So 769; Gregory v. State, 46 Ala. 151; Shiff v. State, 84 Ala. 454, 4 So. 419, 420; State v. Nix, 165 Ala. 126, 51 So. 754; Horton v. State, 53 Ala. 488.

In Horton's Case, supra, Brickell, C.J., said: "Each alternative averment must present an indictable offense, or the indictment is insufficient ***. The count being in this respect bad *** it is bad in the whole."

In State v. Nix, supra, the Supreme Court said: "The indictment pursues the form provided. Criminal Code 1907, p. 669, form 55. Alternative averments in an indictment must each present an indictable offense; and if, in such an indictment, one or more of the alternatives expressed charged no offense, then the indictment is bad in toto." The vice of the two counts in the present indictment, and which rendered each of said counts defective and insufficient, was the alternative charging that the accused did "buy prohibited liquors." The several offenses joined in the indictment are malum prohibitum, and, as stated in the Griffin Case, supra, there is no statute in this state to cover the alternative averment designated.

The defect aforesaid in the indictment was brought directly to the attention of the court by appropriate demurrer, and the demurrer should have been sustained, but, instead of so doing, the court, upon motion of the solicitor, and without the consent of the defendant, amended the indictment by entering a nol pros as to the defective alternative averments in each count of the indictment. This also was error. The statute permits an indictment to be amended "with the consent of the defendant, entered of record, when the name of the defendant is incorrectly stated, or when any person, property, or matter therein stated is incorrectly described." This statute is equivalent to a declaration on the part of the Legislature that an indictment cannot be amended in any case without the defendant's consent.

"An indictment is the act of the...