6 Ala. 324 | Ala. | 1844
The averment of the indictment is, that it became a material question on the trial of this cause before the magistrate, whether the defendant on the --■ day of-, 1840, was ready to deliver on demand certain plank, to one Peters, according to the contract between them. The italicised woi-ds do not affect the meaning of this averment, because the
2. Indeed, if the contract was, as it is stated to be, the material
It is evident that the indictment does not conform to our view of the legal effect of the contract, as stated, and therefore, we hold it bad.
3. We are not able to determine with certainty, whether the question reserved had reference to the proof of the proceedings before the magistrate, or to the writing by which the contract between the parties was evidenced; but whether it was the one or the other, the written evidence should have been produced, or its absence accounted for. The identity of the proceedings before the magistrate with those described in the indictment, could only be known by comparing his record or his papers, with the averments. The written contract, if there was one, was the only proper mode of ascertaining its legal effect, and consequently, of ascertaining what questions of evidence were material or otherwise, at the trial before the justice. It should, therefore, have been produced, or its absence accounted for.
As the prosecutor may wish to prefer another indictment, we shall l'emand the cause in order that the defendant may not be discharged without recognizance,
Judgment reversed and remanded.