47 So. 77 | Ala. | 1908
The indictment avers that the defendant was “sworn by the clerk or judge of said court,” while the proof shows that she was sworn by one McCoy, a deputy clerk. While it would seem that an indictment need not aver the particular officer before whom the oath was taken, and it would be sufficient to aver in code form that the defendant was “duly sworn,” yet when the state undertakes to particularize the offense, the proof must correspond with the allegation. — McClerkin v. State, 105 Ala. 107, 17 South. 123; Walker v. State, 96 Ala. 53, 11 South. 401; Clark’s Manual, § 1240; 1 Greenleaf on Evidence, 63-65. It is not sufficient that the deputy clerk had the authority to administer the oath, as the question is one of voriance; and, •as the proof did not support the allegata, the trial court erred in not giving the general charge requested by the defendant.
The proof does not show that the oath was administered in the presence of the clerk and under his direction, so as to render it his act, under the rule declared in the case of Walker v. State, 107 Ala. 7, 18 South. 393.
The judgment of the criminal court is reversed, and the cause is remanded.
Reversed and remanded.