Thomas v. State
| Decision Date | 23 June 1896 |
| Citation | 20 So. 617,111 Ala. 51 |
| Parties | THOMAS v. STATE. |
| Court | Alabama Supreme Court |
Appeal from criminal court, Pike county; William H. Parks, Judge.
Simon Thomas was convicted of a crime, and appeals. Reversed.
The appellant was tried and convicted under the following indictment: "The grand jury of said county charge that before the finding of this indictment Simon Thomas unlawfully and maliciously killed one ox, of the value of twenty dollars, and one cow of the value of twenty dollars, the personal property of Tom Orr, against the peace and dignity of the state of Alabama." The solicitor elected to prosecute for the killing of the cow charged in the indictment. The facts necessary to an understanding of the decision on the present appeal are sufficiently stated in the opinion. The defendant requested the court to give to the jury the following written charges, and separately excepted to the court's refusal to give each of them as asked: (1) "The court charges the jury that if the state has failed to prove that the cow and ox were injured or shot at the same time, or so near to each other as to constitute the same offense, then the defendant is not guilty as charged in the indictment. (2) "If the jury believe from the evidence in this case that the cow was shot on Thursday, and the ox was shot on Tuesday of the next week, they should acquit the defendant." (4) "If the jury believe from the evidence that the cow was shot on Thursday, and the ox was shot on Tuesday of the following week, then the defendant is not guilty as charged in the indictment."
R. L Harmon, for appellant.
Wm. C Fitts, Atty. Gen., for the State.
It was an elementary principle of the common law that a count in an indictment charging two distinct offenses was vicious; it was double pleading. Under proper circumstances, in separate counts, there could be a joinder of two or more distinct offenses. The rule prevailing in this state is that, when the offenses are of the same general nature, and belong to the same family of crimes, if the mode of trial and nature of the punishment are the same, there may be a joinder of them in separate counts though they are punishable with different degrees of severity. 1 Brick. Dig. p. 500, § 750; 3 Brick. Dig. p. 281 § 474. The statute (Cr. Code, § 4385) provides that, "when offenses are of the same character, and subject to the same punishment, the defendant may be charged with either in the same count in the alternative." The purpose of the statute is to dispense with a multiplicity of counts, permitting one, by alternative averment of different offenses, to serve the purposes of several. Burdine v. State, 25 Ala. 60; Sherrod v. State, Id. 78; Horton v. State, 53 Ala. 488; Noble v. State, 59 Ala. 78. The present indictment contains a single count, charging a single offense,-the unlawful, malicious killing of a cow and of an ox, the property of the same person. Upon its face it is faultless, not subject to demurrer. The evidence in support of it showed that the animals were killed at different times, several days intervening between the killing of the cow and the killing of the ox. If the indictment had on its face disclosed these facts, it would have been vicious for duplicity under the rule of the common law; and, as there are not alternative averments of several offenses, it is not within the statute. In Elliott v. State, 26 Ala. 78-81, it was said by the court: "However unobjectionable on its face an indictment may be, a conviction under it cannot lawfully result from proof of the identical...
To continue reading
Request your trial
-
Addington v. State
...alternative and the averments are descriptive of the offense (Felix v. State, 18 Ala. 720; Eskridge v. State, 25 Ala. 30; Thomas v. State, 111 Ala. 51, 20 So. 617; Townsend v. State, 137 Ala. 91, 34 So. Lindsey v. State, 48 Ala. 169; McGehee v. State, 58 Ala. 360; Miles v. State, 94 Ala. 10......
-
Smith v. State
... ... court with respect to the showings and depositions ... When an ... indictment alleges the means by which a homicide was ... committed in the alternative, each alternative averment must ... be construed as a separate count. Thomas' Case, 111 Ala ... 51, 20 So. 617; King's Case, 137 Ala. 47, 34 So. 683. The ... first count in the indictment in this case, then, charges ... that the killing was effected by the defendant hitting the ... deceased with a hatchet, the second by striking him with a ... hatchet, while the third ... ...
-
Flournoy v. State, 8 Div. 606.
... ... 26] be joined in one count in the alternative, as ... provided in Section 249, Title 15, Code of Alabama 1940, only ... if the punishment for each is the same, they may be joined in ... separate counts of the same indictment even though punishable ... by different degrees of severity. Thomas v. State, ... 111 Ala. 51, 20 So. 617; Lewis et al. v. State, 4 ... Ala.App. 141, 58 So. 802; Jones v. State, 17 ... Ala.App. 283, 84 So. 627.' ... Basically rape and incest are sexual offenses. To this extent ... they are of the same general nature and belong to the same ... ...
-
White v. State
...and like offenses, the rule is different. Townsend v. State, 137 Ala. 91, 34 So. 382; Elliot v. State, 26 Ala. 78; Thomas v. State, 111 Ala. 54, 20 So. 617; Lindsey v. State, 48 Ala. 169; Brimie v. States, 200 F. 726, 119 C.C.A. 170; McGehee v. State, 58 Ala. 360; State v. McDonald, 1 McCor......