136 Ala. 118 | Ala. | 1902
The defendant was convicted for violating a local promibition law. The first count in the indictment is in the form prescribed by the Code,
In Cochran v. State, 30 Ala. 546, it was said: “Section 3503 of the Code expressly sanctions the manner of stating the act constituting the offense, as set forth in that form; and it gives a like sanction to the other forms in the appendix in all cases where they , are
It is scarcely necessary to say more. These cases settle beyond further controversy the sufficiency of the indictment. However, see cases collected in 1 Mayfield’s Dig. p. 422, § 11. The demurrer was properly overruled.
After the demurrer was overruled, the defendant moved the court to require the solicitor to furnish him -with a bill of particulars showing the time and place of the sale, etc. of the liquor and the name of the person to whom the sale etc. was made. In support of the motion an affidavit made by defendant was filed in which he deposed to his ignorance of the time and place and the name of the purchaser etc. etc. The court overruled the motion to which an exception was reserved. The following cases are cited in support of defendant’s right to the bill of particulars: Williams v. Com., 91 Pa. St. 493; Com. v. Snelling, 15 Pick. (Mass.) 329; People v. McKinney, 10 Mich. 54, and Rex v. Hodgson, 3 Carr. & P. 422. It must be conceded that they recognize his right to it, but in each of them, except, the English case, they say it is a matter within the sound discretion of the trial court, and in the Pennsylvania and Michigan cases, a doubt is expressed as to whether the refusal of the trial court to order the bill is revisabie. In the Massachusetts case, the court granted the motion, which was made by the State, and it was held to have been properly granted. The report of the English case was of the trial at nisi prim. Whatever may be the practice in those jurisdictions with respect to demanding a bill of particulars in criminal cases and the right to review the action of the trial court, the practice has never prevailed in this State, and we would be unwilling to introduce into it such an innovation even if there was no precedent against it. But the practice allowed to obtain in these cases is by no means universal. In other
The writer entertains the opinion that the defendant should have been allowed to prove that Otts kept whiskey in the locker to which he had a key. It was a circumstance which he had a right.to have go to the jury. It tended in some degree, when taken in connection with all the testimony, to show that’ the bottle of whiskey that the State’s witness saw Otts have, belonged to him and not to defendant, and, furthermore, it tended to repel the adverse inference that might be drawn from the fact, thajfc Mark Otts came out of defendant’s room with the bottle of whiskey which it is charged that he purchased from defendant. The other members of the court do not concur in this view, and hold that the testimony was inadmissible.
We all concur, however, in the opinion that the court committed an error in excluding the remarks of defendant’s counsel made in his argument to the jury. They were not illegal; involved no statement of fact; but were a mere inference from the testimony which
Reversed and remanded.