Thomas v. State
111 Ala. 51
Ala.
1895
Check Treatment
BRICKLELL, G. J.

It was an elementary principle of the common law, that a count in an indictment charging two distinct offenses was vicious; it was double pleading. Under proper circumstances, in separate counts, there could be a joinder of two or more distinct offenses. The rule prevailing in this State is, that when the offenses are of the same general nature and belong, to the same family of crimes, if the mode of trial and nature of the punishments are the same, there may be a joinder of them in’ separate counts, though they are punishable with different degrees of severity. — 1 Brick. Dig. 500, § 750 ; 3 Brick. Dig. 281, § 474.

The statute, (Cr. Code, § 4385), provides,that “when *54offenses are of the same character, and subject to the same punishment, the defendant may be charged with either in the same count in the alternative.'’ The purpose of the statute is to dispense with a multiplicity of counts, permitting one, by alternative averment of different offenses to serve the purposes of several. — Burdine v. State, 25 Ala. 60; Sherrod v. Sherrod, Ib. 78; Horton v. State, 53 Ala. 488; Noble v. State, 59 Ala. 78.

The’present indictment contains a single count, charging a single offense, the unlawful, malicious killing of a cow and of an ox, the property of the same person. Upon its face it is faultless, not subject to demurrer. The evidence in support of it showed that the animals were killed at different times, several days intervening between the killing of the cow and the killing of the ox. If the indictment had on its face disclosed these facts, it would have been vicious for duplicity under the rule of the common law ; and as there are not alternative averments of several offenses, it is not within the statute.

In Elliott v. State, 26 Ala. 78-81, it was said by the court: “However unobjectionable on its face an indictment may be, a copviction under it cannot lawfully result from proof of the identical facts which would, if distinctly stated in it, vitiate the indictment, and enable the defendants, even after conviction, to arrest or reverse any judgment rendered on it against them.” In McGehee v. State, 58 Ala. 360, said Stone, J.: “If it had been averred in this indictment that the two defendants had committed separate and distincts offenses, at different times — neither being present or participating in the offense of the other — a demurrer to the indictment would have lain, notwithstanding the two ' charges are identical in character. This, on the well defined ground, .that on such trial, it would be necessary to offer proof of two independent transactions, thus producing inextricable confusion of the minds of the jurors. * * * On like principles, if two offenders be charged in one indictment, which is faultless in form, and it is developed in the evidence that the two defendants committed their several offenses at different times or places — in other words, that they are not guilty of one and the same offense — the proof does not sustain the indictment.” The particular question now presented for consideration, was presented and decided in Burgess v. State, 44 Ala. 190; *55an indictment founded on the same statute on which the present indictment is founded, for malicious mischief, the offense consisting of the unlawful disabling and injuring a mare and an ox. — Or. Code, § 8869. The evidence showed that the animals were injured at different times. The court said : ‘ ‘If these animals had been separately disabled or iiljured, it should have been so charged in separate counts in the indictment, else much confusion may arise in such cases. The injury to the mare was one offense and the injury to the ox was another, unless perhaps the injury to both was the result of one act. The indictment is not demurrable, because the act which constitutes the crime may be committed as charged — that is, the two animals may be injured at the same time and by one act. But if it is so alleged, it must be so proven. The plea in answer to such an accusation is that the accused is not guilty as charged in the indictment. It is not that he has not violated the statute in any manner, but that he has not violated it as set forth in the accusation. If this is not required, then an indictment charging that a person with criminal intent, had violated a particular section of the penal law would be sufficient. But this would be a departure from the forms laid down in the Code, and also the important rule of criminal procedure above quoted. * * * The animals injured were different animals, and the injury to each is a different offense, and though such offenses may be joined in the same count, as they are of the same grade, yet if both offenses are charged in the same count, they should be charged in the alternative.”

The election of the solicitor, under the direction of the court, to prosecute for the killing of the cow only, it may be, would have been unobjectionable, if there had been separate counts charging the killing of each animal, or, if in a single count, the several killings had been laid in the alternative. The election could not change the nature and character of the indictment, as it was disclosed by the evidence; that instead of .charging a single offense, under the guise of such charge, it was a charge of two distinct offenses. In civil and criminal cases, the substance of the issue must be proved; and any departure in the evidence from the substance is a fatal variance. — 1 Greenl. Ev., § 63. Evidence of a separate; distinct killing of each animal, was a depar*56ture from the substance of the issue; a fatal variance. The court below erred in the refusal of the first, second, and fourth instructions requested by the defendant. This conclusion renders unnecessary a consideration of other questions presented by the bill of exceptions.

The judgment is reversed and cause remanded. The defendant will remain in custody until discharged by due course of law.