Dix v. State, 62 So. 1007

PELHAM, J.

— The indictment on -which the defendant was tried and convicted contained but one count and wаs drafted with a view of charging an offense under the act approved Fell. 11, 1911, to regulatе the business commonly known as the “junk business,” or “junk dealers.” — Acts 1911, p. 11. The averments of the charging part of the indictment, after alleging the defendant to he a dealer in junk or a junk dealer, etc., are, so far as germane to the question to be considered, as follows: that is, they chаrge that the defendant “did unlawfully purchase or otherwise acquire from Jack May one iron stove, and five pieces of iron piping, or other material or fixtures pertaining to а house, without first having,” •etc. The defendant demurred to the indictment, assigning many grounds, among others those attacking the validity of the indictment because it charged the defendant with different offensеs in the disjunctive, and alleging that one of the alternative averments was bad in that it failed to specify or particularize what “other material or fixtures pertaining to a house” was рurchased in violation of the statute.

Tlie statute defining tlie off ease and making the commissiоn of tlie prohibited acts a misdemeanor punishable by a fine or imprisonment does not prescribe a form for ‍​‌‌​​‌​‌​‌​‌‌​​​‌‌​‌‌​‌​​‌‌​‌​‌​‌​‌​‌‌‌‌‌‌‌​​​​‌‍an indictment adapted to the offense created, nor does the Code furnish a form. The sufficiency of the indictment must therefore be tested by general principles.

It is settled in this state that alternative averments in an indictment must each charge an indiсtable offense, and that in case there is a failure in this particular, and one or morе of the alternative averments charges no offense, then the indictment is bad in toto.—State v. Nix, 165 Ala. 126, 51 South. 754; Raisler v. State, 55 Ala. 64 ; Horton v. State, 53 Ala. 493; Hornsby v. State, 94 Ala. 55, 10 South. 522; Hill v. State, 145 Ala. 58, 40 South. 654.

The alternative averment made the basis .of attack by demurrer, “or other material or fixtures pertаining to a house,” is in the Avords used by the statute, it is true; but it is not sufficient to charge an offense ‍​‌‌​​‌​‌​‌​‌‌​​​‌‌​‌‌​‌​​‌‌​‌​‌​‌​‌​‌‌‌‌‌‌‌​​​​‌‍in the words оf the statute creating it Avhen in defining or specifying the offense in the charge or presentment only the general terms of the statute that succeed particular designated prohibitеd acts are used. — Johnson v. State, 32 Ala. 583; Horton v. State, supra.

The indictment is fatally defective if it contain disjunctive averments in the same count, unless each separate alternative charge is alleged Avith certainty, particularity, or definiteness. — Rogers v. State, 117 Ala. 192, 23 South. 82; Noble v. State, 59 Ala. 73; Pickett v. State, 60 Ala. 77.

The statute creating and defining the offense for AAdiich the defendant in this case wаs indicted provides that it shall be unlawful for any ‍​‌‌​​‌​‌​‌​‌‌​​​‌‌​‌‌​‌​​‌‌​‌​‌​‌​‌​‌‌‌‌‌‌‌​​​​‌‍person carrying on a junk business, or dealing in junk, to purсhase or other-Avise acquire from any person “any iron, brass, brasses, lead, lead pipes, locks, bath tubs or other material or fixtures pertaining to a house.” The particular sрecified acts prohibited aud made an offense are followed'by the more comprehensive -generic terms, and these generic terms are immediately precedеd by and connected with the things particularly specified by the words “or other.” The generic terms used this way in such a connection include other acts or things of the same kind or within the same сlass, and it is not enough to aver the commission of such other acts or things in the general language used in the statute^ but they must, to constitute a good charge, be specified or designatеd more particularly than by these generic terms, including, as they do, other and different property than that specified and enumerated by particular description in the statute crеating and defining the offense. — Johnson v. State, and other authorities cited supra.

The recitals in the bill of exceptions and judgment entry show that an attempt wаs made by the state’s solicitor to avoid the invalidity of the indictment on the ground pointed out by'dеmurrer, by a voluntary election to prosecute only for a purchase of those things оr articles specified and particularly designated in one of the alternative avеrments contained in the indictment. An election could only go to a good indictment, and this doсtrine could not apply ‍​‌‌​​‌​‌​‌​‌‌​​​‌‌​‌‌​‌​​‌‌​‌​‌​‌​‌​‌‌‌‌‌‌‌​​​​‌‍for the purpose of eliminating a part of the indictment that wаs bad in its entirety as returned by the grand jury. The indictment as a whole was subject to the infirmity pointed out by demurrer, and could not be cured by an election on the part of the state; for, if it was otherwise, then a resort to an election could be had to eliminate any defective averment in any indictment, no matter how gross or glaring the defect rendering the indictment void.

Such a proceeding would amount to an amendment of the indictment without the consent of the defеndant, and an indictment is the act of the grand jury- and cannot be amended, even as to immaterial- matter, without the defendant’s consent. — Johnson v. State, 46 Ala. 212; Gregory v. State, 46 Ala. 151; Shiff v. State, 84 Ala. 454, 4 South. 419.

The judgment of the court below must he reversed for the error ‍​‌‌​​‌​‌​‌​‌‌​​​‌‌​‌‌​‌​​‌‌​‌​‌​‌​‌​‌‌‌‌‌‌‌​​​​‌‍committed in overruling the demurrers to the indictment.

Reversed and remanded.

Case Details

Case Name: Dix v. State

Court Name: Alabama Court of Appeals

Date Published: Jun 3, 1913

Citations: 62 So. 1007; 8 Ala. App. 338; 1913 Ala. App. LEXIS 175

Court Abbreviation: Ala. Ct. App.