48 Ala. 328 | Ala. | 1872
Indentures of apprenticeship made by the probate judges, under section 1450, Bevised Code, or, •as they are called in section 1453, letters of apprenticeship are to be regarded as deeds rather than records, and as the manner in which they are to be proved is not stated, before they can be read as evidence on the trial of an indictment, under section 3690, Bevised Code, for enticing, decoying or persuading an apprentice to leave the service
, 2. The other two objections — the one as to the jurisdiction of the probate judge to make said indentures, and the other on account of the alleged variance in the names of the apprentices, as stated in the indictment, and in the said indentures of apprenticeship — were properly overruled.
1. As to the objection to the jurisdiction of the probate judge to make said indentures, said section 1450 declares that “ the judge of probate of each county may bind out, as apprentices, the children of any person unable- to provide for them support, until the age of twenty-one years, if a male, and eighteen, if a female.” This section confers on probate judges jurisdiction of the subject matter. The only fact necessary to give a probate judge jurisdiction under said section, of any particular case, is, that the person or persons to be apprenticed or bound out, are the children of persons who are unable to provide for their support. This jurisdictional fact the probate judges, respectively, must determine for themselves, when they assume to act in any particular case ; and them judgment, in the premises, can only be reviewed in a direct proceeding for that purpose, and can not be impeached in any collateral proceeding. This jurisdictional fact appears to have been ascertained by the probate judge before he bound out the apprentices named in said indentures. In each indenture it is stated that the parents of the child to b.e thereby bound, were unable to provide for his support. We think it manifest the indentures offered in evidence were made under said section 1450, and as the mode or manner of ascertaining the jurisdictional fact, under said section, or what shall be the evidence of it, is not stated, we hold it sufficient if it be stated in the indentures them
When the probate courts assume to act under section 1454, the reports required to be made to said courts by the officers named in said section, are sufficient to give said courts jurisdiction to apprentice the persons named in such reports. Proceedings, under this section, are required to be recorded, and it may be such records would be the only proper evidence to sustain the jurisdiction of said courts, in such cases, but it is unnecessary to decide, and we do not decide this question in this case, but leave it open to be decided when it becomes necessary.
2. We think there is nothing in the alleged question of variance. It is, really, rather a question of identity than of variance. The identity of the apprentices named in the indictment, and in the said indentures of. apprenticeship, was proved without objection before the said indentures were offered in evidence. If a second name had been given to the apprentices, in the said indentures, different from - that stated in the indictment, then the objection would have been a good one, but as this is not the case, there is no substantial variance, but rather a mere defective description, which,' we hold, may be aided by parol evidence.
Mr. Greenleaf says, “where the time, place, person, or other circumstances are not descriptive of the fact or degree of the crime, nor material to the jurisdiction, a discrepancy between the allegation and the proof is not a variance.” — -1 Greenl. Ev. § 65.
Eor the error mentioned, the judgment is reversed and the cause remanded for another trial.
