Sullivan v. State

68 Ala. 525 | Ala. | 1881

BRICKELL, C. J.

The County Court of Madison county, by statute, is invested with jurisdiction, co-extensive and concurrent with that of the Circuit Court, of all misdemeanors committed within the county.—Acts of 1876-7, p. 149; Cawthorn v. State, 63 Ala. 157. The mode of preferring, before the court, a charge or accusation of misdemeanor, is prescribed by the Code, section 4702. The affidavit in writing of a person, stating that he has probable cause for believing, and does believe, that a designated misdemeanor has been committed by a named person, is the charge or accusation. That charge or accusatiorpbeing preferred, a warrant of arrest issues ; and on the day appointed, a trial is had. The trial is of the guilt or innocence of the particular offense of the party charged. It is not, and can not be converted into, a trial of the good faith of the person making the affidavit. Nor. can any inquiry be made, whether the facts in his knowledge, or on which he based his belief, constituted probable cause, or were sufficient to generate a reasonable belief of the guilt of the accused. It is not for such inquiries, or for their determination, the court sits.—Sale v. The State, at present term. Nor is there, if it should appear that the affiant made the affidavit on facts within his own knowledge, an election by the State to proceed for a conviction on such facts.

The accusation, like an indictment, includes and involves but one offense. That it does include and involve one offense, as fully and completely as would an indictment found by a grand jury, returned into the Circuit Court, is equally true. As a general rule, the State can offer evidence of but one offense to support the accusation. If evidence of more than one is offered, the defendant may compel the State to elect the one or the other, as the single offense for which he is to be prosecuted. Or, if the State gives evidence, identifying or individualizing a particular act or acts as constituting the offense, an election is made, which can not be retracted subsequently, and other distinct act or acts proved.—Smith v. State, 52 Ala. 384. The election can be made by, or forced on the State, only upon the trial of the cause. It is not made, and can not be compelled, at any other time; and can only be made, or compelled, under the circumstances stated. The election made by the State, and the only election made before the trial, was to prosecute the accused for the carrying of concealed weapons. There was no election to prosecute him only on the evidence of Robinson, who made the accusation, and there was no right in the accused to compel such an election— in other words, to elect himself, for the State, the act or acts for which he should be prosecuted; for to this complexion comes at last the objection made in the County Court, and it was properly overruled.

The charge requested by the appellant ought to have been given. The evidence referred to had no bearing on the guilt or innocence of the accused, and there was propriety in so instructing the jury, that they might be careful not to weigh it against him.

Let the judgment be reversed, and the cause remanded ; 'the defendant will remain in custody, until discharged by due course of law.