117 Ala. 192 | Ala. | 1897
The indictment consisted of two counts, charging the defendant in .the fh’st count with simple assault, and in the second count, with a rock or brick, “or other missile of like kind.” There was a demurrer to the second count directed against the averment “or other missile of like kind.” We are of opinion the demurrer was well taken, and the court erred in overruling it. When the means by which an offense was committed are charged in the alternative, each alternative charge must describe the means, with’ the same definiteness or particularity, as would have been rer quired, had the charge been made separately in a separate count. If the means are unknown to the grand jury, it may be so averred ; but unless it affirmatively appears from the indictment that the instrument or means used to effect the offense were unknown, it is necessary to describe' the° instrument or means used. Hornsby v. The State, 94 Ala. 55 ; Johnson v. The State 32 Ala. 583 ; Raiford’s case, 7 Port. 101.
There was no error in excluding the testimony of Smith, Penn and Adams, relating to the killing of defendant’s dog. The facts proposed to be proven by these witneses -were too remote to throw any legal light upon any proper constituent of the alleged' assault, especially in the light of the other evidence.
Charge one refused to defendant, is the same as charge number two given. The court was not required to repeat the charge.
Charges three, four and five requested by the defendant should have been given.
Reversed and remanded.
