100 Ala. 130 | Ala. | 1893
The defendant was convicted of an assault with intent to rob. There were two counts in the indictment, the first charged that the assault was made with the intent to rob, and the second, that it was made with the intent to murder. The action of the primary court upon a demurrer to an indictment ordinarily will not be revised by this court, when the only evidence of its existence and the action of the court thereon is the recital in the bill of exceptions. 3 Brickell p. 78, §§ 6 and 7. Such is the condition of the record before us. We would have no hesitation in declaring, however, if the question had been properly raised, that the ruling of the court as recited in the bill of exceptions, was free from error. Section 4338 of the Criminal Code provides that “when an offense may be committed with different intents, such intents may be alleged in the same count in the alternative,” and by section 4385 it is declared, “when offenses are of the same character, and subject to the same punishment, the defendant may be charged with the commission of either in the same count in the alternative.” What may be charged in one count of an indictment in the alternative, may certainly be charged in two separate counts of the same indictment. 1 Brick. Dig. p. 500, par. 750-753 inclusive. Johnson v. The State, 29 Ala. 62; Season v. The State, 72 Ala. 191.
There was no error in receiving the evidence in support of the second count, after evidence had been introduced in support of the first count. The very purpose for framing the indictment with two or more counts, was to prevent the application of the doctrine of election. When there is but one count charging a single offense, the law presumes, the
There is no error in the record, and the judgment must be affirmed.
Affirmed.