Lee v. State

• Decision Date: 30 June 1906
• Citation: 41 So. 677,147 Ala. 133
• Parties: LEE v. STATE.
• Court: Alabama Supreme Court

41 So. 677

147 Ala. 133

LEE v. STATE.

Supreme Court of Alabama

June 30, 1906

Appeal from Hale County Court; W. C. Christian, Judge.

"To be officially reported."

Lucius Lee was convicted for failing to work the public roads, and he appeals. Reversed.

Defendant was indicted, tried, and convicted for the offense of failing to work the public roads. The testimony showed that in 1902 and 1903 that defendant was apportioned to a certain road. The solicitor was permitted to ask the witness, over the objection of defendant, "Did you, in November, 1902 warn the defendant to work the public road?" The witness answered: "I gave the defendant three days' warning to work the road, telling him where to meet me. I warned him on Monday to work on Friday. He did not come." The defendant moved to exclude the answer to witness on the grounds that the grand jury had indicted the defendant for an offense alleged to have been committed in March 1903, and asked the court to limit the testimony to the offense charged in the indictment. The court overruled the objection and refused to limit the testimony. The defendant offered to prove that the grand jury which found the indictment on which defendant was being tried had before it no testimony as to any offense committed by defendant, except in March, 1903. The court refused to permit this testimony. It was shown that the road overseer on the 24th day of March, 1903, returned a complaint against defendant for failure to work the roads and that this was the only complaint returned against him. In his argument to the jury the solicitor said: "If the defendant had worked ten days in 1902, he would have told you about it." The defendant objected to this statement and moved to exclude it. The court overruled the objection, and defendant excepted.

The defendant requested the following written charges: "(1) The court charges the jury that, if they believe the evidence in this case beyond a reasonable doubt, they must acquit the defendant. (2) Unless the jury are satisfied from the evidence in this case beyond a reasonable doubt that the defendant was indicted by the grand jury for a willful refusal or failure, to work the public road in October or November, 1902, they must acquit the defendant."

De Graffenreid & Evans, for appellant.

Massey Wilson, Atty. Gen., for the State.

ANDERSON J.

While the statute (section 4901 of the Code of 1896) dispenses with the necessity for stating the precise time at which the offense was committed, the law requires that all indictments must be found on legal evidence; and when an indictment charges an offense, it means the one testified to before the grand jury, and not one that may have been committed by the defendant at some other time, and which was not considered by the grand jury. While the indictment in the case at bar did not have to aver the precise time the offense was committed it did charge the defendant with the commission of the offense (meaning, of course, the one testified to before the grand jury), and the law does not authorize the conviction for an offense which was...