Gandy v. State

81 Ala. 68 | Ala. | 1886

SOMEBYILLE, J.

— The defendant was tried in the court below, a tribunal having a concurrent jurisdiction with the Circuit Court of all misdemeanors, and was convicted of violating section 4325 of the present Code, as amended by the act of February 15th, 1881 (Acts 1880-81, p. 42), having reference to the offense of enticing away servants from their employment under certain circumstances specified in the statute.

The prosecution was commenced by a complaint before a justice of the peace, and the defendant was held to answer before the Criminal Court of the county of Greene, which mode of procedure seems to have been authorized by the act organizing this court. — Acts 1884-5, p. 275, § 9. The affidavit, or complaint, charges, in general terms, that the defendant has committed the offense of “ persuading ” the affiant’s daughter from his employment. It is very apparent that the complaint is wanting in that certainty of description which is necessary to constitute a formal accusation of crime, and would have been demurrable on this ground. But the record fails to show that any objection was taken to it, and the defendant thereby waived all amendable defects. Such a complaint, like an information at common law, but unlike an indictment, is amendable at the instance of the State, and without the consent, or even against the objection of the defendant, requiring, perhaps, in some cases, a re-verification by affidavit; but a new and different case can not be introduced, without the institution of a new prosecution. — Tatum, v. State, 66 Ala. 465 ; Perry v. State, 78 Ala. 22; 1 Bish. on Criminal Proc. (3d Ed.), §§ 714-5, 721. If the complaint had been objected to, it might have been amended by alleging that the enticing was knowingly done, and either that the party enticed was a minor, or else that she had contracted in writing to serve the affiant. — Acts 1880-1, p. 42.

We hold that, in a case like this, where the defendant has failed to object to any amendable imperfection or inaccuracy in the description of the offense, but proceeds to trial on the merits, it is too late for him to raise such objection for the first time in this court on appeal. This is in harmony with the policy of our statutes governing the review of the proceedings in the county courts of this State, providing that “ all amendable defects shall be regarded as amended, so as to present only the substantial inquiry of the guilt or innocence of the accused.”— Code, 1876, § 4722.

2. The evidence tended to show that the defendant had enticed away or induced the prosecutor’s daughter, who was a minor, to leave his service without his consent. The case, in our judgment, fell within the statute, which requires no written or even express contract of service where the relation of parent and of a minor child exists. A mere constructive service, as opposed to that of hired servant, is sufficient. The law implies that the service of the minor is lawfully due to the parent so long as the child remains in the family under' the control of the parent. — 2 Greenl. Ev. (14th Ed.), § 576. The court so ruled.

3. It was not permissible for the defendant to lay the predicxte, as attempted by him, for the avoiued purpose of impeaching the witness Belle Gordon by proving contradictory statements previously made by her. She was his witness for the time being, and could not be thus impeached. This case does not come within the rule that a party may sometimes show that a witness had previously stated facts in a different manner,-so as to prove that he has been entrapped by the witness, or taken by surprise, through his contrivance, art, or deceit. The purpose in such a case is not to impeach the witness, although it may incidentally have such effect. — 1 Greenl. Ev. (14th Ed.), § é.4A. — Hemingioay v. Garth, 51 Ala. 530.

We find no error in the record, and the judgment is affirmed.