71 Ala. 348 | Ala. | 1882
The indictment charges that the defendant “ did bv/y, sell, receive, barter, or dispose of two hundred and ninety pounds of seed cotton, after the how of sunset and before the how of stmrise of the next succeeding day, against the peace and dignity of the State of Alabama.” The offense charged is one violative of section 4369 of the Code, as amended by the act approved February 12,1879. — Code, 1876, § 4369; Acts 1878-79, p. 63.
It is very clear that the indictment is bad for uncertainty. It is no objection, however, that the several offenses denounced by the statute are stated in the same count disjunctively, or in the alternative. They are of the same character, and subject to the
Under the authority of Grattan’s case, ante, p. 344, we hold, that the indictment should have averred the name of the ven-dee of the cotton to whom the defendant sold, bartered or disposed of it; and it should have averred, either in the alternative in the same count, or in a different count, at the option of the grand jury, the ownership of the property bought or received, or else the name of th q person from whom it was bought or re-cewed. Either of the latter averments is clearly sufficient, and both are not required. If these facts were unknown 'to the grand jury, it should have been so expressly stated. These averments were necessary to obviate the want of certainty in identifying the offense charged, and were exacted by a just regard for the analogies of the law of pleading, as well as of the forms prescribed by the Code for analogous cases.-Grattan’s case, supra; Code, 1876, § 4824; Form 36, p. 995; Wharton’s Prec. 828, 844; 1 Bish. Cr. Proc. §§ 548, 583; 3 Whart. Cr. L. § 2443; Com. v. Slate, 11 Gray, 60.
We are of opinion that the various exceptions taken to the admission of evidence should have been sustained. There is no evidence tending to show that George Wiggins was the aur thorized agent of the defendant, Jdussetl, to violate the law. It may be true that Russell conferred on Wiggins authority to purchase cotton in the seed. Put this was an act perfectly lawful in itself, and was not a crime unless perpetrated at a time forbidden by laio — “ after the hour of sunset and before the hour of sunrise of the next succeeding day.” — Code, 1876, § 4369. Every agency is presumptively a lawful one. If an agent be instructed to do an act, he must execute his agency in a legal manner, if possible. He possesses no authority to perpetrate a crime in obeying the instructions of his principal.. The law presumes, in the absence of proof to the contrary, that Russell’s instructions to Wiggins to buy seed cotton, were to buy at a time of the day authorized by law, and not in the night time when it was unlawful. Hence, the declarations of Wiggins, at the time of the purchase, that he was acting as the agent of defendant, were inadmissible, without bringing home to him the criminal design of his agent. And under the same principle, the entire evidence, bearing on the purchase of the cotton made by Wiggins, which was without the authority of the defendant, should have been excluded from the jury. Whart. Cr. Ev. (8th Ed.) §§ 695-96; Seibert v. State, 40 Ala. 60; Nall v. State, 34 Ala. 262.
The judgment of the Circuit Court must be reversed, and the cause remanded for further proceedings.
