Lashley v. State

• Decision Date: 21 April 1938
• Docket Number: 4 Div. 12.
• Citation: 236 Ala. 28,180 So. 724
• Parties: LASHLEY v. STATE.
• Court: Alabama Supreme Court

180 So. 724

236 Ala. 28

LASHLEY v. STATE.

4 Div. 12.

Supreme Court of Alabama

April 21, 1938

Certiorari to Court of Appeals.

Barney Lashley was convicted of an offense and appealed to the Court of Appeals.The judgment of conviction being there affirmed the State, by its Attorney General, applies for certiorari to review and revise the judgment and decision of the Court of Appeals in the case styled Lashley v. State,180 So 720.

Writ denied.

See also, Lashley v. State, Ala.App.,180 So. 720.

A. A. Carmichael, Atty. Gen., and Wm. H. Loeb, Asst. Atty. Gen., for the State.

P. B. Traweek, of Elba, opposed.

THOMAS Justice.

In the case of Doss v. State,220 Ala. 30, 123 So. 231, 233, 68 A.L.R. 712, the observation is made that:

"The first count of the indictment under which the verdict of guilty was returned by the jury is in the form prescribed by section 4556 of the Code, form 68, and, under the repeated ruling of this court, it is sufficient although it 'omits to aver' in terms some of the material facts necessary to be proved to secure a conviction.Schwartz v. State,37 Ala. 460;Smith v. State,63 Ala. 55;Whitehead v. State,16 Ala.App. 427, 78 So. 467;Leonard v. State,96 Ala. 108, 11 So. 307;Walker v. State,96 Ala. 53, 11 So. 401;Lang v. State,97 Ala. 41, 12 So. 183;Reeves v. State,95 Ala. 31, 11 So. 158;Huffman v. State,89 Ala. 33, 8 So. 28;Bailey v. State,99 Ala. [ 143] 145, 13 So. 566;Coleman v. State,150 Ala. 64, 43 So. 715.

"The case of Bryan v. State,45 Ala. 86, cited by the appellant, and followed by the Court of Appeals, declared a different rule; but that case was overruled by Weed v. State,55 Ala. 13; this was pointed out by the Court of Appeals in Whitehead v. State,16 Ala.App. 427, 78 So. 467.

"The third count of the indictment condemned in Henry (a Slave) v. State,33 Ala. 389, was not in the form prescribed by the statute."

Again in 42 Corpus Juris, p. 1386, § 1453, the subject is stated as follows: "A complaint, information, or indictment is ordinarily sufficient when it follows the language of the statute, and it is not fatally defective by reason of its omission to state that the injury was caused or the accident occurred on a public highway, or to describe the particular point in the highway at which the accident took place, or to set forth the name of the person collided with or injured; and it is sufficient after verdict, although it fails to describe with particularity the property injured or the particular injury caused to the property.It has been held, however, that, where the name of the person injured is not given, the defendant is entitled as of right to a statement of particulars, for the purpose of obtaining such information."

The statute is the rule of public safety.

In Grattan v. State,71 Ala. 344, Mr. Justice Somerville states the general rule that, where a new offense is created by statute, an indictment describing the offense in the language of the statute, or in words conveying the same meaning, is good, if it is sufficient to allege the facts in the doing or not doing of which the offense consists.

In Morningstar v. State,52 Ala. 405, the Chief Justice for the court announces the rule that, where an essential averment of the...