Lewis v. State

| Ala. Ct. App. | Apr 4, 1912

de GRAFFENRIED, J.

This prosecution was commenced by an affidavit which the reporter will set out in his statement of the facts of.this case. An inspection of the affidavit will show that the defendants were charged in the affidavit with the commission of two offenses which are of the same character and subject to the same punishment in the alternative, and also with another and distinct offense which is not charged in the alternative. The offenses charged in the alternative are for a violation of section 6394 of the Code, and the offense which, is joined in the-affidavit,, not in the--alterna#, five, is for a violation of section 6397 of the Code.,- The most casual -inspection of the affidavit upon, which, the defendants were tried and convicted will disclose- this situation. The defendants properly demurred’to the-affidavit, but the court overruled their demurrer, and the question thus presented is the only one which it is necessary for us to consider in this case.

To use the language of Brickell,' C. J.: “It was an elementary principle of the common law that a count in an indictment charging two distinct offenses was vicious; it was double pleading.. Under proper circumstances in separate counts, there could be a joinder of two.or more distinct offenses. The rule prevailing in this state is that, when the offenses are of the same genera! nature and belong- to the same family of crimes, if the mode of trial and nature of the punishments are the same, there may be a joinder of them in separate counts, though they are punishable with different degrees of severity:”—Thomas v. State, 111 Ala. 51" court="Ala." date_filed="1895-11-15" href="https://app.midpage.ai/document/thomas-v-state-6516712?utm_source=webapp" opinion_id="6516712">111 Ala. 51, 20 South. 617. Section 7151 of the present Code provides that, when offenses are of the same character and subject to the same punishment, a defendant may be charged with the commission of either in the same count in the alternative. “The purpose of this statute is to dispense with a multiplicity of counts, permitting one, by alternative averments of different offenses, to serve the purposes of several.”—Thomas v. State, supra.

While the prosecution in this case was instituted by affidavit instead of by indictment, we know of no rule-which exempts such an affidavit from the operation of. the rule declared in Thomas v. State, supra.

In our opinion, therefore, the demurrer to the affidavit upon the ground above referred to was well taken, and the court erred in overruling the demurrer of the defendants to the. affidavit or complaint, for the above reasons.

The judgment of the court below is reversed and the cause, remanded.

Beversed and remanded.