Presnal v. State, 5 Div. 792.
| Decision Date | 30 June 1930 |
| Docket Number | 5 Div. 792. |
| Citation | 129 So. 480,23 Ala.App. 578 |
| Parties | PRESNAL v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Randolph County; W. B. Bowling, Judge.
Ray Presnal was convicted of manslaughter in the second degree and he appeals.
Reversed and rendered.
Hooton & Moon, of Roanoke, for appellant.
Charlie C. McCall, Atty. Gen., for the State.
Demurrers to the indictment were properly overruled, it being clearly evident that the facts stated therein were sufficient to enable a person of common understanding to know what offense was intended to be charged, and also sufficient to enable the court on conviction to pronounce proper judgment. When an indictment is thus formulated it is usually sufficient. Code 1923,§ 4529.
Another statutory rule provided by section 4528, Code 1923, is, an indictment must not be held insufficient, nor can the trial judgment, or other proceedings thereon be effected by reason of any defect or imperfection in any matter of form which does not prejudice the substantial rights of the defendant on trial.
Here the indictment charged this appellant with the offense of manslaughter in the first degree, and each count alleges that this appellant unlawfully and intentionally, but without malice, killed Tom Kirby and Hubert Kirby, stating in different language, by recklessly and negligently driving and operating an automobile in which the two deceased were riding with him.
This indictment, while specifically charging manslaughter in the first degree, by operation of law charges every lesser offense included in the one charged. Horn v State, 98 Ala. 23, 29, 13 So. 329. Upon the trial this appellant was convicted by the verdict of the jury of the offense of manslaughter in the second degree, and judgment of conviction was accordingly pronounced and entered. This result of the trial operated as an acquittal of the defendant of manslaughter in the first degree, and renders unnecessary, here, a discussion of such points of decision, insisted upon as error, which relate only to the higher grade of offense of which he was acquitted.
Manslaughter in the second degree, being punishable only by hard labor or imprisonment in the county jail, and by the assessing of a fine, is a misdemeanor. Code 1923, § 3874; and the prosecution of all misdemeanors before the circuit, or county court, unless otherwise provided, must be commenced within twelve months next after the commission of the offense. Code 1923, § 4931.
In the case at bar, it affirmatively appears from the undisputed evidence that the unfortunate tragedy upon which this prosecution was based occurred on June 17, 1928. It also appears from the record that the indictment upon which this trial was had was returned by the grand jury on August 24 1929, and that said indictment was based upon an original presentment to the grand jury. It follows that the statute of limitation had run, and the offense of which this appellant was convicted was barred...
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...and consequently renders innocuous any trial court error in regard to matters referable only to the higher offense. Presnal v. State, 23 Ala.App. 578, 129 So. 480; Brewington v. State, 19 Ala.App. 409, 97 So. 763; Crump v. State, 29 Ala.App. 22, 191 So. 475; Frazer v. State, 29 Ala.App. 204......
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