60 Ala. 62 | Ala. | 1877
The indictment is founded on section 4136 of the Code of 1876, which declares a witness failing or refusing, without a good excuse, to be determined by the court, in obedience to a summons, to appear before the grand jury, and testify as to any gaming within his knowledge, is guilty of a contempt, and also of a misdemeanor. There is no averment in the indictment of the character of the summons issued to the defendant, nor by whom, or what authority it was issued, nor by whom, or when it was served, nor when it was returnable. The offense is of the same character as that of resisting process; and an indictment for it, according to the rules of pleading at common law, would have been fatally defective, unless it averred the issue of a summons by proper authority, with a proper description of it, the time of its return,. and service by a proper officer.— 2 Bish.' Cr. Pr. §§ 891-93. The statutes have changed the common-law rules of criminal pleading, dispensing with many averments which were regarded as indispensable, reducing indictments rather to a statement of legal conclusions than of facts. Forms of indictments for many offenses are given, which are declared sufficient in all cases to which they are applicable; and it is further declared that, in other cases, analogous forms may be used. — Code of 1876, §4824. A form is prescribed for resisting an officer in executing process, which states the officer, and contains a mere general
The judgment must be reversed, and the cause remanded. The prisoner must remain in custody, until discharged by due course of law.