Morgan v. State

19 Ala. 556 | Ala. | 1851

CHILTON, J.

The first and principal objection to this indictment is, that in its commencement it states that ££ the grand jurors for the State of Alabama upon their oath present,” &c., instead of the averment that such grand jurors were elected, empannelled, SAvorn and charged to inquire for the body of Mobile county. The indictment conforms to the English common hw precedents, Avhich usually commenced, ££ the jurors for our Lord the King, upon their oath present,” &c. — 2 Chitty’s Crim. L. 1-2. In England, hoAvever, as in this country, the caption sIioaa's the court in which the proceedings Avere had, as well as ■ the jurors by whom the indictment was found, and this, although no part of the indictment, makes the proceedings sufficiently certain. — See 1 Chitty’s Crim. L. 326-7-8, and cases cited. Objection is taken to the caption in this case, that it is but the certificate of the clerk, and not a transcript from the record of the City Court; but the objection is not sustained by the record, a portion of which record the clerk duly certifies it is. We cannot indulge a presumption against the verity of his certificate, as to what constitutes the record, and consequently must treat the caption as properly constituting a portion of it.

In the State v. Lassley, 7 Port. 526, it was held, that where it appears from an' entry on the record, that the grand .jury elected, empannelled, sworn and charged, returned a bill of •indictment into court, it must be intended to have been done as the law requires, the reverse not being shown by plea, &c. In the case before us, the defendant below treated the indictment •as having been properly found and returned, by his plea guilty. If he desired to take advantage of any irregulariw or the formation of the grand jury, he should have done so byjJam appropriate plea. It is well settled, that he cannot raise/ftMr objection for the first time in this court.—State v. Clarkson, 3 Ala. 378; State v. Shaw, 18 ib. 547, and cases there citeo^y

The objection that the addition of the county of the defend^ ant’s residence is omitted, cannot be supported. It is usual and proper to charge that, “A. B., late of said county,” &c., which refers to the county stated in the margin, as do also the words, “ then and there,” as used in the body of this indictment; (Cro. Jac. 167; 1 Brrv. 47,) but it is sufficient to state, as is here done, that the prisoner committed the felony “within said county.” The addition of residence in England was considered unnecessary, except in cases where process of outlawry could issue, and the necessity for it in any case was rested upon their statute of 1 H. 5, c’;'5; see Leeche’s Case, Cro. Jac. 167. With -us, it is but mere matter of form, and the failure to aver it does not aficct the validity of the indictment. As to the sufficiency of the indictment, see 4 Dev. 336, and 1 Chitty’s Crim. L. 208.

We are unable to percieve any defect in this indictment, available to the defendant, and the judgment of conviction must be affirmed.