McLeod v. State

• Decision Date: 21 June 1913
• Citation: 8 Ala.App. 329,62 So. 991
• Parties: McLEOD et al. v. STATE.
• Court: Alabama Court of Appeals

62 So. 991

8 Ala.App. 329

McLEOD et al. v. STATE.

Court of Appeals of Alabama

June 21, 1913

Rehearing Denied July 8, 1913

Appeal from Circuit Court, Barbour County; Mike Sollie, Judge.

Solon McLeod and another were convicted of violating the fish and game laws, and they appeal. Affirmed.

The indictment, omitting the formal charging part, is as follows "Solon McLeod and Forrest Grantham unlawfully took caught, or killed fish in the waters of the state by means of seine; such waters not being a pond or reservoir wholly on the premises of said Solon McLeod and Forrest Grantham, nor salt waters of the state, nor waters in the state in which the tide ebbs and flows; and such seine not being a small seine, not more than 12 feet in length and 4 feet in width known as minnow seine, for catching minnows to be used for bait only."

Motion was made to quash the indictment on the ground that no competent evidence was introduced before the grand jury that returned the indictment to support the same, and demurrer was also opposed to the indictment raising the questions discussed.

C.S McDowell, Jr., of Eufaula, and George W. Peach, of Clayton, for appellants.

R.C. Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.

PELHAM, J.

The defendants were indicted for violating the law against seining, as provided by section 6901 of the Code. The indictment by its terms not only charged an offense under this section, but included the unnecessary averment of a proviso or exception embodied in a separate statute or section of the Code from that creating and descriptive of the offense charged.

The rule is that, when the proviso or exception is set out in a separate clause or section from that creating and defining the offense, it is not necessary to negative the exception by averment. Clark v. State, 19 Ala. 552; Carson v State, 69 Ala. 235; Grattan v. State, 71 Ala. 344; Britton v. State, 77 Ala. 202; Bell v. Wallace, 81 Ala. 422, 1 So. 24; Bellinger v. State, 92 Ala. 86, 9 So. 399; Bell v. State, 104 Ala. 79, 15 So. 557; Sims v. State, 135 Ala. 61, 33 So. 162; Hyde v. State, 155 Ala. 133, 46 So. 489.

The negative matter of surplusage averred was as follows: "And such seine not being a small seine, not more than 12 feet in length and 4 feet in width, known as minnow seine, for catching minnows to be used for bait only." The defendants moved to quash the indictment on the ground that there was no evidence before the grand jury that returned the indictment showing the size of the seine alleged to have been used. Proof of this fact was introduced in support of the motion. The court overruled the motion, and it is this action of the court that is presented for review.

No fault is to be found with the proposition, asserted by appellants and fortified by ample authority, that, where unnecessary averments are made in an indictment, or matters stated with undue particularity, they must be proved on the trial as laid; but that is not the question here. The motion to quash was based on the ground that there was no competent evidence before the grand jury to support the indictment found by it, and the proof in support of the motion showed no more than that there was no evidence before that body of the size of the seine--an allegation unnecessary to the validity of the indictment. If the grand jury had competent evidence before it to support a valid finding of the offense charged in the indictment, then it was found on legal evidence, and the motion to quash because found on insufficient evidence cannot prevail, although it may appear that there was no proof before the grand jury of the matters of surplusage alleged.

It was held in Sparrenberger's Case, 53 Ala. 481, 25 Am.Rep 643, and approvingly quoted in Washington's Case, 63 Ala. 192, and later in Agee's Case, 117 Ala. 169, 23 So. 486, that, "when it appears witnesses were examined by the grand jury, or the...