71 Ala. 344 | Ala. | 1882
The indictment charges that the defendant did “ unlawfully and knowingly buy eotton in the seed, which was produced in Lowndes county.” It is found under the act approved February 1,1879, prohibiting, in certain cases, the sale, exchange and transportation of cotton in Lowndes and other specified counties. — Acts 1878-9, p. 206.
There is also a count in the indictment specially averring that the case does not fall within the class of cases contained within the proviso, or exception to the statute. This, however, was unnecessary, being a mere matter of defense, which the Írosecntor is not required to negative by way of anticipation. f the act charged as a violation of the statute comes within the influence of the proviso, this would constitute a defense more properly coming from the defendant.-1 Whart. Cr. Law, § 378; 1 Arch. Cr. Pl. 86; 1 Bish. Cr. Proc. § 513. This is the settled rule where a proviso or exception is embodied in a separate clause of the statute, and not in the same clause with that creating the offense.-Clark v. State, 19 Ala. 552; 1 Brick. Dig. p. 499, § 739. And such is this case.
It is insisted that the indictment is objectionable on the ground of uncertainty, in failing to aver the person from whom the cotton was purchased. •
The general rule is, that when a new offense is created by statute, if,the offense is described in the language of the statute, or words conveying the same meaning, this is deemed sufficient.-Clark v. State, 19 Ala. 552; Code, 1876, § 4792; 1 Bish. Cr. Proc. § 595; Sparrenberger's case, 53 Ala. 481. But it is not always sufficient to pursue the words of the statute, “ unless by doing so you fully, directly and expressly allege the fact, in the doing or not doing of which the offense ■consists.”-Turnipseed v. State, 6 Ala. 664; State v Brown, 4 Port. 413; 1 Bish. Cr. Proc. § 612; Carter v. State, 55 Ala. 181; Quinn v. State, 9 Amer. Rep. 754.
The objection urged goes to the degree of certainty or particularity with which the offense is stated. The statute requires that every indictment “ must state the faets constituting the offense, in ordinary and concise language, without prolixity or repetition, in such manner as to enable a person of common understanding to lenow what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment.; and in no case are the words ‘ force and arms,’ or ‘ contrary to the form of the statute,’ necessary.” — Code, 1875, §4784. This does not differ essentially from the ingredients of an indictment suggested by Lord Hale,
In cases where the statute makes it an indictable offense for any person to dispose of, or sell any particular kind of article, commodity, or merchandise, it has generally been held that the more judicious course is for the indictment to specify the ven-dee, or person to whom the sale is made ; or else to aver that he is unknown. Such, for example, seems to be the uniform holding of the courts as to indictments for the illegal sale of lottery
This class of cases, however, can not strictly be considered analogous to the one in hand. They all embrace the sale of property by a defendant, which is presumptively his own and not another’s. An averment of ownership would, therefore, furnish no aid to identification, and hence the necessity of averring the purchaser, to obviate the objection of vagueness and uncertainty in the statement of the particular offense.
The present indictment is for an illegal purchase by the defendant of property belonging to another. It is more analogous to the crime of' receiving stolen goods, an indictment for which, at common law, was not required to specify the name of the thief, from whom the defendant received the goods, although required to state the owner of such goods, or that his name was unknown.-Roscoe’s Cr. Ev. 804; Murphy v. State, 6 Ala. 845; Com. v. Slate, 11 Gray, 60; State v. Smith, 37 Mo. 58; Arch. Cr. Pl. 256. So in Clark v. The State, 19 Ala. 552, which was an indictment for permitting a gaming table to be exhibited and carried on in a house occupied by the defendant, it was held unnecessary to allege the name of the person by whom the table was exhibited, or that his name was unknown.
In our judgment, the ownership of the cotton alleged to have been purchased by the defendant should have been averred, or else the, person from whom the purchase was made should have been stated.
With respect to ownership, it was the settled rule of the common law that “ the name of the owner of the property, in relation to which the offense is committed,-should be truly stated in the indictment.”-1 Stark. Cr. Pl. 182, 207; 1 Bish. Cr. Proc. § 583. Such seems also to be the statutory rule, and certainly the established practice as to crimes generally, involving injuries to property.-Code, 1876, §§ 4800, 4824, p. 992; Form 12, p. 995; Forms 33, 34, 37, et seq.; 1 Bish. Cr.
The judgment of the Circuit Court is reversed and the cause remanded for a new trial. The prisoner will, in the meanwhile, be retained in custody until discharged by due course of law.