Griffith v. State

90 Ala. 583 | Ala. | 1891

OLOPTON, J.

The general rule is, that a clerical error, or misspelling, or the omission of letters from a word, does not vitiate an indictment, unless the word is thereby changed into one of different import, or the sense so obscured that a person of ordinary intelligence can not from the context determine with certainty the meaning. — 10 Amer. & Eng. Encyc. of Law, 548. In Grant v. State, 55 Ala. 201, the rule is thus stated: “Before an objection because of false grammar, incorrect spelling, or mere clerical error, is entertained, the court should be satisfied of the tendency of the error to mislead, or to leave in doubt as to the meaning a person of common understanding, reading, not for the purpose of finding defects, b.ut to ascertain what is intended to be charged.” The omission of the letters ght from the word aforethought, in the second count of the indictment, scarcely comes within the rule. Though a clerical omission, which does not change the word into another of different import, it leaves a collection of -letters forming no word of any significance whatever, and incapable of like sound. A lawyer would understand what was intended to be charged, but one of ordinary intelligence would be left in doubt as to-the meaning. The specified letters being omitted, the count does not allege that the killing was with malice aforethought, which is essential to charge the offense of murder.

Section 3704 of the Code declares: “The distinction between an accessory before the fact and a principal, and between principals in the first and second degree, in cases of felony, is abolished; and all persons concerned in the commission of a felony, whether they directly commit the act constituting the offense, or aid or abet in its commission, though not present, must hereafter bepndicted, tried and punished as principals, as in the case of'misdemeanors.” An accessory before the fact is one who counsels, commands, or procures another to commit a crime, not being himself actively or constructively present at the time of its commission. It is not essential that any specific mode of perpetrating the crime should be counseled or commanded, or that it should be done in the particular way instigated. The inciter may be indicted, convicted and punished under the statute, if the principal commits the crime, though he may vary the mode or circumstances of perpetration, or though no particular manner, time or place may have been counseled or instigated.—Hughes v. State, 75 Ala. 31; 1 Amer. & Eng. Encyc. of Law, 67-69.

The charges requested by defendant, predicated upon the fact that he did not himself leave the infants in the woods, and was not present when it was done, were calculated to mislead the jury. They would have understood that, in order to convict, the State must show that defendant counseled or instigated the killing of the infants by exposure in the woods. Also, the charge exacts too high degree of proof — “clear and distinct proof.” The requirement of the law is, satisfaction “beyond a reasonable doubt” — that degree of certainty which produces an abiding conviction of the truth of the charge. The exjsression used would have tendedlo impress the jury with the idea, that the evidence must be of such character as to produce conviction of guilt beyond any doubt, and also positive. It is inapt, and inaccurate, when iised in an instruction to the jury.

Charges eight, nine and eleven assert the proposition, that unless defendant did some act of actual participation, or aided or abetted in leaving the infants exposed, which acts would constitute him a principal in the second degree, he can not be convicted under the statute. This is manifestly incorrect; for, if defendant was actually or constructively present, participating in the act,- or aiding and abetting, he can not be an accessory before the fact, and such accessory, as we have seen, may be indicted, tried and punished, under the statute, as a principal.—Hughes v. State, supra; Rayford v. State, 59 Ala. 106.

Though a party can not impeach his own witness, he may inquire of him, whether he has not made statements contra■dictory of, or inconsistent with his evidence on the trial, for the purpose of refreshing his memory, or of showing that he has been surprised by evidence differing from what the prior statements of the witness induced him to expect. Otherwise, a party may- be entrapped and put to a great disadvantage by an artful and hostile witness. We do not understand that the purpose of the inquiry made by the solicitor of the witness-Dee Griffith was impeachment, but to prevent the State being prejudiced by her unexpected testimony.—White v. State, 87 Ala. 24.

Evidence of the statements of the midwife, as to the condition of the infants, and that they would get well if they could get good breast-milk, and that she advised that they be taken where they could get it, was properly excluded. The midwife should have been called to have proved the facts, if relevant; her statements were not part of the res gestae. The evidence is not “ that of the event speaking through participants ; ” but the statements of an observer. — Whar. Or. Ev. §§ 262.

It appears that, prior to and at the time of the commission of the offense, defendant lived at Fayetteville, Tennessee. The court permitted the State to prove that his general character was bad previous to its commission, by two witnesses, who-testified .they did not know defendant before the offense was committed, nor where he lived; but, learning that he -resided at Fayetteville, they went there for the purpose of investigating, and knew luis general character from what they learned on that visit. That a witness may be competent to testify to defendant’s general character, he must possess the means of knowing what it is before the commission of the offense. A stranger, sent to the. place of his residence after the offense had been committed, for the purpose of learning his general character prior thereto, is incompetent to testify to such character.—Douglass v. Tonsey, 2 Wend. 352; 1 Greenl. Ev. § 461; 1 Whar. Ev. § 563. In Reid v. Reid, 17 N. J. Eq. 101, much of the evidence as to the character of the witness was founded on opinions expressed by others after their examination, and a material portion was ■furnished by a person who made inquiries in the neighborhood of their residence, for the purpose of procuring evidence in the cause. It is said : “ All this evidence is clearly incompetent. No rule is better settled, or founded on clearer principles, than that which excludes all testimony touching reputation founded on opinion expressed post litem motam. Not only should the character of the witness be founded on reputation previously existing, but a stranger sent by a party to the neighborhood of the witness, to learn his character, will not be permitted to testify as to the result of his inquiries. ”

We have not considered the objection to the indictment based on. the ground, that it charges the killing of two infants in the same count. The members of the court are not agreed in opinion, whether the indictment charges a single offense, or distinct offenses in the same count. As the case must be reversed, we leave this question undecided; but recommend, as the safer course, that a new indictment be found, charging the offense in a manner to meet any state of the evidence.

Reversed and remanded.