O'Brien v. State, 91 Ala. 25

O'Brien v. State

91 Ala. 25 | Ala. | 1890

COLEMAN, J.

Objection is made to the form of the indictment, in that it charges “that W. P. O’Brien, whose christian name is to the grand jury unknown,” &c. It is very clear, that the grand jury used the letters “W. P.” as initial letters of a name, and not as a name. The use of the words-immediately thereafter, “whose Christian name is unknown,” is conclusive of this question. It is an averment by the grand jury that the defendant has a Christian name, not expressed, by the letters used, but which to the grand jury Avas unknown.. This ruling is entirely consistent Avith the case of Jones v. State, 63 Ala. 28, and Gerrish v. State, 53 Ala. 480. The-allegation in the indictment was authorized by section 4376-of the Code.

A nolle-proseqai before the defendant has been placed in-jeopardy, by the impanelling and SAvearing the jury, and the-entering of his plea, does not absolve the defendant from-liability lrom further prosecution for the same offense. Itsonlv effect is to end the then prosecution.—Walker v. State, 61 Ala. 32.

*28Tlie defendant was indicted for selling whiskey without a license, and contrary to law. It appears there were three indictments pending against the defendant, each charging him with a violation of law substantially in the same language. At common law, it was necessary to lay some definite time in ■an indictment. This is not required under the statute, unless “time is in some way a material ingredient of the offense.” It is sufficient, under the statute, to charge that the offense was committed before the finding of the indictment. —McDade v. State, 20 Ala. 82; Code, § 4373. Each sale of whiskey without a license is a separate offense, for which the offender is liable to separate indictment. The proof must show that the offense was committed within the period prescribed by law for such prosecution.

Two of the three indictments had been disposed of by nolleprosequi. On the trial of the third, the defendant offered to introduce testimony to show that the State’s witness in the present trial was before the grand jury, and that he testified before that body of two separate offenses, and that his name appeared as the State witness on the two indictments disposed ■of by nolle-prosequi. The defendant further offered to prove bj another witness, whose name appeared on the indictment under which he was being prosecuted, as a State witness, that 'this witness was also before the grand jury, and gave evidence ■of a similar violation of law, at a time different from those to which the other witness testified, before the grand jury.

Thjs testimony was properly excluded. The grand jury had preferred three indictments against the defendant, for like violations of the law. For reasons satisfactory to the court, the defendant was put upon trial for only one of them. It was entirely within the discretion of the solicitor, by leave of the •court, to nolle-prosequi either indictment, and to prosecute the defendant for any violation of law charged and covered by the remaining indictments. It is no ground of complaint for the defendant, that he was not tried under each several indictment. There is no rule of law in this State, which requires the solicitor to place the names of witnesses who appeared before the grand jury on any particular indictment. If there had been three counts instead of one in the indictment, evidence of each violation of the law might have been given in by the State on the one trial, although under our practice there could have been but one conviction. As there was but one count, the State was bound by the doctrine of election, under this indictment, where a single act is a violation of the law, and would have been held to the first offense testified to by the State’s witness.—Elam v. State, 26 Ala. 48. *29Furthermore, the evidence offered was irrelevant to the issue before the jury.

The evidence shows that the whiskey was sold on Sunday, and it is contended that the defendant was guilty of a violation of the Sunday law, and can not be convicted under this indictment. According to this argument, if the defendant had been indicted for a violation of the Sunday law, he could, with equal force and correctness, have contended that he was guilty of a violation of the law forbidding a sale of whiskey without a license, and therefore could not be prosecuted for a violation of the Sunday law, and thus escape punishment altogether. The present conviction is a bar to any prosecution under the Sunday law, and if the party had been tried for a violation of the Sunday law, and the same act had been given in evidence on that trial, it would have presented a bar to the present prosecution. If a party plays cards in a public place on Sundajq he may be prosecuted under either statute; but a conviction under one is a bar to a prosecution under the other. Moore v. State, 71 Ala. 307; Hurst v. State, 86 Ala. 606.

There is no error in the record, of which the appellant can complain.

Affirmed.