Jolley v. State

| Ala. Ct. App. | May 28, 1912

de GRAFFENRIED, J. —

The indictment in this case charges that “Gabe Jolley, a man, whose Christian name is to this grand jury otherwise unknown, and a woman, whose name is to the grand jury unknown, did live together in a state of fornication or adultery, against the peace and dignity,” etc. Because the grand jury does not know the name of one of the parties who are living together in a state of adultery is no reason why they should not indict the party whose name they do know from the evidence adduced before them, and it is evident that the indictment in this case, which follows the letter of the form prescribed in the Code, is sufficient. If the grand jury did know the name of the woman, then the defendant could have developed that fact by evidence, and this the defendant failed to do.- — - Smith v. State, 142 Ala. 14" court="Ala." date_filed="1904-11-15" href="https://app.midpage.ai/document/smith-v-state-6520591?utm_source=webapp" opinion_id="6520591">142 Ala. 14, 39 South. 329; 6 Mayfield’s Dig. p. 456, § 53.

While the state, to obtain a conviction of a misdemeanor, must prove to the satisfaction of the jury beyond a reasonable doubt that the defendant committed the offense within 12 months before the finding of the indictment or the commencement of the prosecution, indictments need not allege the time at Avhich the misdemeanor Avas committed, or that it Avas committed Avithin 12 months before the finding of the indictment or the commencement of the prosecution. — 6 Mayfield’s Dig. p. 453. Sometimes time is a material ingredient of an offense, and when .that is the case the time when the offense was committed, or that it was committed within a certain named period, should be stated in the indictment. This latter rule is of limited application, and has no application to the question before us. — McIntyre v. State, 55 Ala. 167" court="Ala." date_filed="1876-12-15" href="https://app.midpage.ai/document/mcintyre-v-state-6509378?utm_source=webapp" opinion_id="6509378">55 Ala. 167; Glenn v. State, 157 Ala. 12" court="Ala." date_filed="1908-12-17" href="https://app.midpage.ai/document/glenn-v-state-7363692?utm_source=webapp" opinion_id="7363692">157 Ala. 12, 48 So. 864" court="Ala." date_filed="1909-02-18" href="https://app.midpage.ai/document/marks-v-state-7363977?utm_source=webapp" opinion_id="7363977">48 South. 864; Kelly v. State, 171 Ala. 44" court="Ala." date_filed="1911-05-05" href="https://app.midpage.ai/document/kelly-v-state-7365497?utm_source=webapp" opinion_id="7365497">171 Ala. 44, 55 So. 141" court="Ala." date_filed="1911-04-13" href="https://app.midpage.ai/document/wade-v-wyker-7365555?utm_source=webapp" opinion_id="7365555">55 South. 141; State v. John Gratton, 4 Ala. App. 172, 59 South. 183.

The indictment in this case was not demurrable because it failed to allege that the offense was committed within 12 months before the finding of the indictment. There is no error in the record, and the judgment of the court below is affirmed.

Affirmed.