Lawson v. State

44 So. 50 | Ala. | 1907

DENSON, J.

The attack made by demurrer on the form of the indictment has been determined against the defendant in the case of Jones v. State, 136 Ala. 118, 34 South. 236, following and reaffirming the case, of Noles v. State, 24 Ala. 672. Appellant’s counsel concede this, and say in their brief that they feel some “trepidation in presenting by the demurrer a proposition that this court has more than once held unsound.” We are satisfied with the reasoning employed in the cases cited, upon which the form of the indictment was approved, and we have not been shown that those cases should be overturned. We therefore hold that the demurrer attacking the form of the indictment ivas properly overruled.

The case of Lee v. State, 147 Ala. 133, 41 South. 677, has decided the principle that a person may not be indicted for one offense and convicted on .proof of another and different offense. The case is not in point in support of the demurrer.

The fifth ground of the demurrer to the second count is completely answered by the indictment as copied in the record.

■The charge given at the request o,f the solicitor leaves o.ut the word “doubt,” .and on this .account it is a bad charge, the giving of which must work a reversal .of the judgment of conviction.

Reversed and remanded.

Tyson, C. J., and Simpson and Anderson, JJ., concur.