Sanders v. State

• Decision Date: 30 June 1911
• Citation: 2 Ala.App. 13,56 So. 69
• Parties: SANDERS v. STATE.
• Court: Alabama Court of Appeals

56 So. 69

2 Ala.App. 13

SANDERS v. STATE.

Court of Appeals of Alabama

June 30, 1911

Appeal from Circuit Court, Dallas County; B. M. Miller, Judge.

Arthur Sanders was convicted of murder in the second degree, and he appeals. Affirmed.

Craig &amp Craig, for appellant.

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

DE GRAFFENRIED, J.

In the case of Noles v. State, 24 Ala. 672, the Supreme Court, in upholding a form of indictment prescribed by the Code, said that when the Code prescribes a form, or specially directs what shall be prescribed in an indictment for a particular class of offenses, "the proper course is for the pleader to adopt the form or pursue the special directions thus given." Elam v. State, 25 Ala 53.

This necessity is due to the terseness, and, in many instances the broad, general terms employed by the Code form in expressing the crime charged in the indictment. The history of the American people and of their ancestors in England Ireland, and Scotland is coextensive with and forms a part of the history of that section of the Bill of Rights, found in the Constitution of the United States and of every state in the American Union, which provides that "in all criminal prosecutions the accused has the right to demand the nature and cause of his accusation." So deeply imbedded has that principle become in our national life that it has, in truth, become a part of the life of each individual within our protection and is as much a necessity to his natural existence as his right to personal liberty or to pursue, without molestation, in a lawful way, a useful vocation. Courts should therefore rigidly enforce the application of this constitutional requirement upon each legislative enactment to which in its letter or spirit it applies; and as our Code forms of indictment are general to the extreme in their language, and in many instances open a broad field to prosecutors actuated by feelings of revenge or hatred, rendering it difficult, in many instances, for a defendant, even though innocent, to successfully defend against perjured testimony, our courts should, in each instance, require the indictment to conform in every substantial particular to the Code form when drawn under the form prescribed by the Code.

The Code forms of indictment for murder in either of its degrees, and for manslaughter in the first and second degrees, are amply sufficient to meet the letter and intent of the above constitutional requirement, and when such indictments comply, in all of their averments, substantially with the Code forms, they are legally sufficient. Every defendant, when so indicted, knows, from the express language of the indictment itself, ex necessitati, the degree of the offense with which he is charged, the name of the deceased unless the name is unknown to the grand jury, and the means alleged to have been employed to produce death unless such means are also unknown to the grand jury.

One of the essential averments of an indictment for murder in either degree, except murder by killing in sudden rencounter with concealed weapon, in this state is that the homicide was committed "with malice aforethought." An indictment, except in case of murder by killing in sudden rencounter with concealed weapon under section 7086 of the Code, which omits the word "aforethought" or its equivalent, does not charge murder in either degree. Etheridge v. State, 141 Ala. 29, 37 So. 337.

In the case of Griffith v. State, 90 Ala. 583, 8 So. 812, the Supreme Court held that an indictment charging that murder had been committed "with malice aforethou" does not allege malice aforethought, and that the indictment was legally insufficient. In that case the court was plainly right, for there is no word in the English language which approaches in sound that produced by giving expression to the sound represented by the letters "aforethou." For the same reason, and because, as stated by the court, "great precision should be observed in matters which vitally affect the life and liberty of the citizen," the court held insufficient an indictment for burglary in Parker v. State, 114 Ala. 690, 22 So. 791, which charged that defendant broke into and entered the "dwell house" of another; the word "dwelling house" and "dwell house" being not idem sonans.

In each of the above cases, however, the court recognized the soundness of the doctrine that a mere clerical error, or misspelling or the omission of letters, did not necessarily vitiate an indictment. In the case of Griffith v. State, supra, the court said: "The general rule is that a clerical error, or misspelling, or the omission of letters from a word, does not vitiate an indictment, unless the word is thereby changed into one of different import, or the sense so obscured that a person of ordinary intelligence cannot from the context determine with certainty the meaning."

In the case of Grant v. State, 55 Ala. 201, in which the indictment charged the defendant with the larceny of ten $20 "gol pieces," and which indictment was held sufficient as a charge of the larceny of ten $20 "gold pieces," the Supreme Court said: "Neither clerical nor grammatical errors vitiate an indictment, unless they change the words, or obscure the sense. * * * The defendant, on an inspection of the indictment, or on hearing it read, would know that it was intended to charge him with larceny of ten $20 gold pieces, and the court would, with certainty, understand that such was the accusation. The case of Wood v. State, 50 Ala. 144, is of doubtful propriety; but, conceding its correctness, it is distinguishable from this case. The omission of the letter '1' from the word 'malice,' in that case, converted it into a word incapable of like sound. Before an objection because of false grammar, incorrect spelling, or mere clerical errors, is entertained, the court should be satisfied of the tendency of the error to mislead, or to leave in doubt as to the meaning a person of common understanding, reading, not for the purpose of finding defects, but to ascertain what is intended to be charged."

Speaking on the same subject, the Supreme Court, in the case of Hampton v. State, 133 Ala. 180, 32 So. 230, says: "The copy of the transcript does not show clearly how the word 'person' was spelled, whether 'peurson' or 'purson.' But it is of no consequence whether the one or the other, since it is simply a clerical or grammatical error. It is impossible to read the complaint and be in doubt as to the word intended or its import. The same may be said of the word 'pistol' if we concede that it was written 'pestol.' "

The original indictment in this case is before us, and a careful examination of it convinces us that it is not subject to the objection to its sufficiency taken to it by appellant, and that there is nothing in the word "aforethought," as it appears written in said indictment, calculated to "mislead, or leave in doubt as to the meaning a person of common understanding, reading, not for the purpose of finding defects, but to ascertain what is intended to be charged." Counsel for appellant insist that the final "t" is left from the word, and that it reads "aforethough"; but we cannot accept the reading of appellant, for it more clearly resembles "aforethougt" than "aforethough," and "aforethougt" is sufficiently near, in point of sound, to "aforethou...