Seals v. State

Decision Date09 November 1939
Docket Number8 Div. 18.
Citation194 So. 682,239 Ala. 5
PartiesSEALS v. STATE.
CourtAlabama Supreme Court

Certiorari to Court of Appeals.

Petition of the State of Alabama, by its Attorney General, for certiorari to the Court of Appeals to review the judgment and decision of that court, 194 So. 677, reversing a judgment convicting James Seals of grand larceny, and discharging him.

Writ granted; reversed and remanded.

Thos S. Lawson, Atty. Gen., and Silas C. Garrett, III, and Wm. H Loeb, Asst. Attys. Gen., for the motion.

Carmichael & Carmichael, of Tuscumbia, opposed.

BROWN Justice.

The appellant, in the Court of Appeals, was indicted by a grand jury impaneled in the Circuit Court of Colbert County for the offense of grand larceny, denounced by § 4905 of the Code. This statute makes the stealing of "any horse mare, gelding, colt, filly, mule, jack, jennet, cow, or animal of the cow kind," grand larceny, without regard to the number stolen or the value thereof. (Italics supplied.)

The indictment described the property as "28 head of cattle of the value of ($1400.00), Fourteen Hundred Dollars, the personal property of E. D. Fennell and Leonard Pruitt."

The demurrer filed to the indictment by the defendant attacked the sufficiency of this description, and the sufficiency of the averment of ownership--whether such ownership was joint or several, and if held in severalty--which of the cattle was owned by Fennell and which by Pruitt. The Circuit Court overruled the demurrer, proceeded to a trial resulting in a judgment of conviction from which the defendant appealed. The Court of Appeals, following the old common law doctrine, that "Cattle" is a generic term, and "may embrace a number of animals and different kinds of stock, as, beasts of pasture not wild nor domesticated; kine, horses, and some other animals appropriated to the use of man; domestic quadrupeds collectively, especially those of the bovine genus, sometimes also including sheep, goats, horses, mules, asses, and swine," held the description "28 head of cattle of the value of $1400.00," insufficient, reversed the judgment of the Circuit Court, sustained the demurrer and discharged the defendant.

The ruling and judgment of the Court of Appeals, disclosed in the opinion, can not be approved unless the indictment is void, charges no offense and is wholly insufficient to intercept the running of the statute of limitations. Miles v. State, 94 Ala. 106, 11 So. 403; Code 1923, § 4555; McIntyre v. State, 55 Ala. 167; Weston v. State, 63 Ala. 155; Bazell v. State, 89 Ala. 14, 8 So. 22.

The indictment, prima facie, is the finding of a duly constituted grand jury organized by a court invested by law with jurisdiction of the offense of grand larceny, and it charges the defendant with the offense of stealing "Cattle." The term "Cattle" in its "usual acceptation in common language" (Code 1923, § 4530), in this jurisdiction embraces only animals of the cow kind. Brown v. Bailey, 4 Ala. 413; Watson v. State, 55 Ala. 150. Therefore, though it be conceded that the indictment was subject to demurrable defects, it was not void, and in the absence of timely and appropriate objections, is sufficient to sustain a judgment of conviction for grand larceny. Noles v. State, 24 Ala. 672; Jackson v. State, 236 Ala. 75, 182 So. 83; Ex parte State (State v. Collins), 200 Ala. 503, 76 So. 445; Gaines v. State, 146 Ala. 16, 41 So. 865; Hornsby v. State, 16 Ala.App. 89, 75 So. 637.

The Court of Appeals erred in discharging the defendant. If reversible error intervened in the ruling on the demurrer, the judgment of the Circuit Court was due to be reversed and the cause remanded. Campbell v. State, Ala.Sup. 191 So. 812; McIntyre v. State, supra.

The constitutional right of a defendant under criminal prosecution "to demand the nature and cause of the accusation; * * to have a copy thereof," is one of the safeguards to personal liberty, coordinating with the further guaranties that he shall be confronted by witnesses against him; shall have compulsory process for obtaining witnesses in his favor; to testify in his own behalf, at his election, and in all prosecutions by indictment shall have a speedy public trial by an impartial jury; shall not be deprived of life or liberty except by due process of law (Const.1901, Article 1, § 6), and shall not "for the same offense, be twice put in jeopardy of life or limb." Const.1901, Art. 1, § 9. It has been observed that: "Notwithstanding the complaints that have been made against the strictness required in criminal proceedings, as tending to facilitate the escape of offenders, all must agree that to a certain extent it is indispensable; nor will it be denied that it is necessary to the purposes of justice, that the party accused should be fully apprised of the nature and identity of the offence, for which he is called to answer. He ought to be protected from subsequent prosecutions for the same offence, and the court ought to be enabled to judge from the record, what the offence is." State v. Francis B. O'Donald, 1 McCord, S.C., 532, 10 Am.Die, 691; Adams v. State, 13 Ala.App. 330, 333, 68 So. 357; Cooper v. State, 15 Ala.App. 657, 74 So. 753.

So, also, by this court: "The object of this clause of the constitution was, to enable every person, against whom a criminal prosecution was instituted, to defend himself against it * * * and a due regard to the intent and spirit of this provision would require us to pronounce against any indictment, whatever might be its form, which was obviously insufficient to secure this result." Burdine v. State, 25 Ala. 60, 62.

And more recently:

"The power of the Legislature to prescribe the form of indictment is part of its general legislative power. Broadly speaking, it is curtailed only by constitutional limitations, such as the right of the accused to be informed of the nature and cause of the accusation, and to have a copy of same. * * *
"The indictment must reasonably disclose an offense known to the law in force during the period covered thereby, and reasonably inform the accused of the accusation he is called upon to answer. Subject to these qualifications, statutory forms have from our early jurisprudence been held sufficient, although facts essential to a conviction may be omitted." Jinright v. State, 220 Ala. 268, 125 So. 606, 607.

The indictment in this case does not follow the language of the statute denouncing the offense of grand larceny, nor does it follow the prescription of § 4543 of the Code which provides: "In an indictment for the larceny of any animal, or for any other public offense committed in reference to any animal, it is sufficient to describe the animal by such name as, in common understanding, embraces it, without designating its sex. (Form 5 (5)." Form 5 (applicable to a kindred offense to grand larceny, Howard v. State, 108 Ala. 571, 18 So. 813) is in the following language: "A. B., with intent to defraud, marked or branded an unmarked horse, the property of C. D." (Italics supplied.) Section 4556, form 5. The form 64 for grand larceny, is in the following language: "A. B. feloniously took and carried away a horse, the personal property of C. D., (or a gold watch of the value of ___ dollars, the personal property of C. D.); * *." (Italics supplied.)

The legislature by prescribing forms, and dispensing with averments of time, place, sex and particular circumstances, have in the interest of simplicity, reduced necessary averments to a minimum, and it is not within the province of the courts to further dispense with averments essential to certainty to a common intent. This much is necessary in civil cases and as observed in Woodward Iron Co. v. Marbut, 183 Ala. 310, 313, 62 So. 804, 805, Sayre, Justice, speaking for the court: "Certainty to a common intent in pleading is essential to the due administration of justice, and it cannot be abolished. By certainty causes and issues are identified for the determination of jurisdiction, and thereby the protection of parties against repeated trials of the same case, the finality of elections of remedies, the comity of courts, and other conserving principles of procedure are assured."

And again, in Noble v. State, 59 Ala. 73, the court speaking through Stone, J. "We often find, in opinions given by judges, the expression 'that the rules of pleading are the same in criminal cases as in civil.'--1 Bish.Cr.Proc. § 43. This, another adds, 'though the books contain more or less such language as is mentioned (above), and though this language is in a certain sense correct, still the practice is to require greater strictness in criminal matters than in civil.'--Ib. § 44. We think we may safely assert that, in the absence of statutory regulations, as high a degree of certainty is required in criminal pleadings as in civil." (Italics supplied.) 59 Ala. 73, 77.

In Horton v. State, 53 Ala. 488, 489, 491, this court speaking through Brickell C. J., observed: "The Revised Code, omitting the forms of indictment for forgery prescribed by the Code of 1852, furnishes no form of an indictment for that offense. Nor is there any specific provision as to the constituents of an indictment, except when the vicious instrument has been destroyed, or is withheld by the act or procurement of the defendant; then, affirming the rule of the common law, a misdescription of the instrument is not fatal. R.C. § 4131. An indictment for the offense must therefore conform to the common law, except as it is changed by the general statutory provisions in reference to all indictments. Johnson v. State, 32 Ala. 583; Jones v. State, 50 Ala. 161. The general statutory provision in reference to the statement of the offense in the indictment is: 'It must state the facts constituting...

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