Rogers v. State
126 Ala. 40
Ala.
1899
Check Treatment
McCLELLAN, C. J.

The original indictment presented against lingers was defective.—Rogers v. State, 117 Ala. 192. While it is true that the defect was in the second count only and that the first count sufficiently charged an assault with a pistol, (not a simple assault as inadvertently said on the former appeal), the defect was none the less a defect in the indictment considered as a whole within the letter and spirit of section 4922 of the Code, for which, as therein provided, the city court was authorized to quash the indictment generally on sustaining defendant’s demurrer to the second count, and to hold him to answer another indictment to be preferred by "the grand jury. Of course it was within the ' court’s competency to sustain the demurrer and eliminate only the count to which it was addressed, proceeding to trial on the good count; but it might well have been to the last degree important to the prosecution and to the ends of justice that the charge intended to be preferred by the defective count should be properly presented ; and it was to prevent just such failure of justice as might result from requiring the State to proceed on the good count, which may have been put in the indictment merely out of abundance of caution and not intended to present the actual offense committed, that the court was given the power by this statute to quash the indictment as an entirety and hold the defendant to answer a new one. The statute thus' construed in'and of itself supports the action of the trial court against any argument which may be drawn from such general principles as are declared in Rose v. State, Minor, 28, and Turner v. State, 40 Ala. 21, in which the statute, had no application.

The entry of record shown in this case was sufficient *44under the section in question. The requirement there is that “an entry of record must be made setting forth the facts.” The “facts” here intended are that the court adjudged the indictment bad for defects therein and held the defendant to answer another indictment. The entry adduced in evidence on the trial under the new indictment sets forth these facts with certainty to a common intent. This matter does not come within sections 4917-18 of the Code relating to variances and the particular prescription of the entry under those sections has no application here.

The testimony offered by defendant tending to aggravate the conduct of Stallings in killing defendant’s dog, as that it was a very small dog, etc., etc., was properly excluded. As ivas said on the former appeal with reference to evidence relating to the killing of the dog: “The facts proposed to be proven * * were too remote to throw any legal light upon any proper constituent of the alleged assault, especially in the light of the other evidence.”—Rogers v. State, 117 Ala. 192, 195.

Affirmed.