Daniel v. State

61 Ala. 4 | Ala. | 1878

MANNING, J.

The statute (§ 4398 of the Code of 1876) denouncing a penalty against “ any person who fraudulently packs or bales any cotton by plating, or otherwise,” is undoubtedly violated when persons who gin cotton for toll,, with intent to defraud the owner of seed-cotton sent to them to be ginned or packed, or to defraud a purchaser thereof,, mix sand or other worthless foreign substances with the cotton when ginned, in the bales into which it is packed. It is not necessary in order to make out the the offence, to show, that the sand is put into the interior of the bale and. concealed by surrounding or plating it with clean cotton ; nor does it matter whether the sand is put into the cottoü. while in the gin-house, or being carried out to the press, or at the press when packed or about to be packed into bales. The charges of the circuit judge are not inconsistent with these views, and were not erroneous; nor did he err in refusing to give to the jury the charges 2, 3 and 3|- that were asked on behalf of defendants.

About the indictment, we have had some difficulty. It charges that appellants “ did fraudulently pack or bale one bale of lint cotton, the jjroperty of Hester Ann Jones, by plating or otherwise, to wit, by sand-paeJcing,” &c.

When a statute creating an offence declares that it may be committed, by certain specified acts or means, “ or otherwise,” the acts otherwise or different from those specified and which are to be put in evidence, must be so described or alleged in the indictment, that the court shall be able to see whether or not they constitute the offence. — Danner v. The State, 54 Ala. 127. If in the latter of such alternative averments, the acts or means by which the offence is supposed to have been committed, are not mentioned, — it ma}1' turn out that the grand jury, in finding the indictment, and the petit jury, in their verdict sustaining it, have imputed to certain acts a character of criminality which does not belong to them in the eyes of the law, and upon which the judge would not be justified in passing sentence against the accused.

It follows, of course, that in alleging the acts assumed to be criminal, they should be set forth in unambiguous -words, understood by court and jury and by people generally; not in slang words or vulgarisms, or words used in a technical sense in some peculiar employment or business, but in words belonging to the plain and proper language of the community. We have hesitated over the question whether the expression “sand-packing” is not of a technical character, and as such not generally lrnown in popular use. But considering how generally the people of this State are concerned in the raising of cotton, and in preparing it for market and in the sale and purchase of it — we think the meaning of “sand-packing” has become so generally understood that we can not say the indictment is bad for ambiguity. It would have been better to have alleged that the fraudulent packing of the cotton was done by intermixing or putting sand with the cotton in the bale, with the intent, &c.

Solicitors should use more thought and care in preparing the brief indictments which are authorized by our statutes.

Let the judgment of the Circuit Court be affirmed.