Johnson v. State, 57 So. 389

Johnson v. State

57 So. 389 | Ala. Ct. App. | 1912

WALKER, P. J.

The defendant did not in the trial •court, by demurrer, motion to quash, or otherwise, raise any question a,s to the sufficiency of the indictment. Having pleaded not guilty and gone to trial ■on the indictment without interposing any objection to it, the objections, now for the first time suggested to it, going merely to the question of its being sufficiently definite and specific in its averments descriptive of the proceedings in which the alleged perjury is charged to have been committed, are, on appeal, to be treated *101as having been waived.—Wilson v. State, 128 Ala. 17, 29 South. 569; Oakley v. State, 135 Ala. 15, 33 South. 23. But it may be added that the indictment substantially follows the form given in the Code for an indictment for perjury committed in a civil proceeding (Code,. §7161, form 82); and that its averments conform to the requirements of the law as decided in many cases.—Barnett v. State, 96 Ala. 165, 7 South. 414; Walker v. State, 96 Ala. 53, 11 South. 401; Smith v. State, 103 Ala. 57, 15 South. 866; Bradford v. State, 134 Ala. 141, 32 South. 742.

There was no merit in the objection made to the introduction in evidence of the affidavit signed and sworn to by the defendant. The evidence showed that it was made and used in the proceeding mentioned in the im dictment, and there was no lack of correspondence between this evidence and the averments of the indictment.—Williams v. State, 68 Ala. 551; Bradford v. State, 134 Ala. 141, 32 South. 742.

The part- of the court’s oral charge to which an exception was reserved embodied several distinct propositions, some of which, at least, were distinctly favorable to the defendant, and the giving of those propositions in charge could not have . constituted a valid ground of objection or exception by him. As to one or more other propositions contained in that part of the charge, it was plainly not subject to criticism. The exception having been reserved to the part of the charge set out as a whole, it cannot be sustained, even though it be conceded that it embodied a legally incorrect proposition, which was not separately excepted to.

Affirmed.