Definition, Form and Contents. case, 29 Ala. 32; Farrall's case, 32 Ala. 557; Green's case, 41 Ala. 419; Frank's case, 40 Ala. 9; Clark's case, 46 Ala. 309; Sparks's case, 59 Ala. 82; Cawthorn's case, 63 Ala. 157. May be proved after argument begun.-Pond's case, 55 Ala. 196. Proof of county boundaries; when a question of fact and when of law.Tidwell's case, 70 Ala. 33. Failure to prove venue, taken advantage of by general charge to acquit.-Childs's case, 55 Ala. 28; Williams's case, 54 Ala. 131; Clark's case, 46 Ala. 307. Or demurrer to evidence sustained, if no proof of venue. Martin's case, 62 Ala. 240. Such proof must appear by bill of exceptions, if purporting to set out all the evidence, on appeal.-Riddle's case, 49 Ala. 389; Walker's case, 52 Ala. 192; Williams's case, 54 Ala. 132; Sampson's case, Ib. 241; Ellsberry's case, 52 Ala. 8. Charges ignoring proof of venue erroneous.-Henry's case, 36 Ala. 268; David's case, 40 Ala. 69; Clark's case, 46 Ala. 307; Gooden's case, 55 Ala. 178; Bain's case, 61 Ala. 75. But see Cunningham's case, 73 Ala. 51. But supreme court will not interfere in the absence of instructions given or refused, and when no exception was reserved.-Hubbard's case, 72 Ala. 169; Huggins's case, 41 Ala. 393; Ellsberry's case, 52 Ala. 8; West's case, 76 Ala. 98. Indictment for violating local prohibition law must show offense was committed within the prohibited territory. Robertson's case, 100 Ala. 123 (14 So. 869). Statement of state and county in margin equivalent to an averment that the offense was committed within the body of that county.—Wesley's case, 52 Ala. 182, 188; Toole's case, 89 Ala. 133 (8 So. 95). 7141. (4903) (4375) (4795) (4122) (572) Description of public place. When, to constitute the offense, an act must be done in a public place, and such public place is not more particularly defined in the statute, it is sufficient to allege that the act was done "in a public place" generally. 7142. (4904) (4376) (4786) (4113) (563) Name or description of defendant when unknown.-The indictment must be certain as to the person charged; but when his name is unknown to the grand jury, it may be so alleged without further identification. Indentity of persons presumed from identity of names, in absence of evidence that same name is borne by another in the community.-Garrett's case, 76 Ala. 18. Evidence of identity.-Ib. Designation of defendant by initial of his Christian name.-Spear v. State, 120 Ala. 351 (25 So. 46). It is the duty of grand jury to ascertain and present every material fact necessary to good indictment; identification of accused a material fact to be ascertained and averred if practicable.-Jones v. State, 63 Ala. 27. Christian name must either be stated or alleged to be unknown.-Roseberry v. State, 50 Ala. 160. Statute is mere affirmation of common law.-Washington's case, 68 Ala. 85. Either Christian or surname may be alleged under alias.-Lee's case. 55 Ala. 259; Haley's case, 63 Ala. 89. And may be identified by either name.Evans's case, 62 Ala. 6. Insertion or omission of middle name immaterial.Edmundson's case, 17 Ala. 179. See, also, Diggs's case, 49 Ala. 311; Rooks's case, 83 Ala. 79 (3 So. 720). And so of a mistake in the middle name, if alleged.-Pace's case, 69 Ala. 231. Not sufficient to allege defendant's name by initials, without aaditional averments.-Gerrish's case, 53 Ala. 476; Winter's case, 90 Ala. 637 (8 So. 556). When not uncertain, as to whether de fendants charged individually, or as private corporation.-Barnett's case, 54 Ala. 579. Mistake in spelling, if pronounciation unchanged, is immaterial variance under doctrine of idem sonans.-Page's case, 61 Ala. 17. The follow ing held idem sonans: "Booth" and "Boothe" (Jackson's case, 74 Ala. 26); Louis" and "Lewis" (Block's case, 66 Ala. 493); "Edmundson" and Edmindson” (Edmundson's case, 17 Ala. 179); "Burdet” and “Boudet," Boredet" or "Bouredet" (Aaron's case, 37 Ala. 106). The following held not idem sonans: "Mincher" and "Minchen" (Adams's case, 67 Ala. 87); Definition, Form and Contents. "Zachary" and "Zacharia" (Lawrence's case, 59 Ala. 61); "Mulette" and "Merlette" (Merlette's case, 100 Ala. 42 [14 So. 562]); "Munkers" and "Muncus" (Munkers's case, 87 Ala. 94 [6 So. 357]). When idem sonans a question for the jury.-Underwood's case, 72 Ala. 220; Lawrence's case, 59 Ala. 61. The Christian names of third persons, or persons only collaterally concerned, may be alleged by initials, if it appears on the trial to be the person meant. Franklin's case, 52 Ala. 414; Gerrish's case, 53 Ala. 476; Haley's case, 63 Ala. 83; Thompson's case, 48 Ala. 165. But the policy of this statute should be extended to description of third persons with same certainty as defendants.-Morningstar's case, 52 Ala. 405. Cases showing material and immaterial variance in names or description of third persons.Jacob's case, 61 Ala. 448; Hinds's case, 55 Ala. 145; Brown's case, 47 Ala. 47; Owen's case, 48 Ala. 328. Grand juries and solicitors in all cases should try and ascertain true names, and, if unknown, may be so alleged without further description.-Morningstar's case, 52 Ala. 405; Gerrish's case, 53 Ala. 470; Cheek's case, 38 Ala. 227. Also, may allege christian name, or surname, as unknown.-Bryant's case, 36 Ala. 270; Skinner's case, 30 Ala. 524. Yet proof that name was known by grand jury, or could have been ascertained by due diligence, authorizes acquittal as to person so alleged, but not if name known since indictment.-Cheek's case, supra. But see as to unknown facts.Duvall's case, 63 Ala. 12. Indictment must not pretend to give name and also aver (in same count) name to be unknown.-Jones's case, 63 Ala. 27. But this rule held not to apply when no name is alleged, but initials only are averred.-Gerrish's case, 53 Ala. 470. An indictment which describes the defendant as "W. P. O'Brien, whose Christian name is to the grand jury unknown" is sufficient.-O'Brien's case, 91 Ala. 25 (8 So. 560). If indictment states only initials of Christian name and alleges it to be unknown and proof shows it was known, there can be no conviction.-Winter's case, 90 Ala. 637 (8 So. 556). Indictment against "Mat" Taylor is sufficient, without allegation "otherwise unknown," and if alleged it is surplusage.-Taylor's case, 100 Ala. 68 (14 So. 875). Indictment against "Babe" Wells is sufficient also, without allegation of "otherwise unknown."-Wells's case, 88 Ala. 239 (7 So. 272). Indictment against Robert Noblin, alias Robert Tate, is good, and plea that name was Robert Tate and that he had no alias is bad.-Noblin's case, 100 Ala. 13 (14 So. 767). "Rooks" and "Rux" are so nearly idem sonans that it will not support plea in abatement.-Rooks's case, 83 Ala. 79 (3 So. 720). There is a material variance between "Tarpley" and "Tapley."-Tarpley's case, 79 Ala. 271. There is no material variance between "Donnelly" and "Donly."-Donnelly's case, 78 Ala. 453. 7143. (4905) (4377) (4789) (4116) (566) Facts unknown to jury; so alleged.-Any fact which is unknown to the grand jury, and which is not a material ingredient of the offense, may be so charged in the indictment. By statute or common law the weapon with which a homicide was committed may be alleged to be unknown.-King v. State, 137 Ala. 47 (34 So. 683). Defense that jury were informed as to the character and description of property stolen, which was alleged to be unknown.-Verberg v. State, 137 Ala. 73 (34 So. 848). Where evidence shows that grand jury knew means employed or other facts alleged to be unknown.-Eatman v. State, 139 Ala. 67 (36 So. 16); Terry v. State, 118 Ala. 79 (23 So. 776). Averments and proof as to denominations of money, coins or currency stolen.-Leonard v. State, 115 Ala. 80 (22 So. 564); Reese v. State, 90 Ala. 624 (8 So. 818). Failure of indictment to allege owner of property.-Grattan v. State, 71 Ala. 344. Allegation that the facts were unknown to the grand jury, if not material, is surplusage.-Collins v. State, 70 Ala. 19. Where name of defendant is set out under alias, and also averred to be unknown, it is inconsistent.-Jones v. State, 63 Ala. 27. The grand jury should diligently inquire before they indiet by initial letter, or aver that name is unknown. It is the duty of the grand jury to take pains and to make it certain as to the person charged.— Definition, Form and Contents. Lyons v. State, 61 Ala. 224. Such averment is sufficient if the fact was actually unknown, even if it could have been ascertained by reasonable diligence.-Duvall's case, 63 Ala. 12. Prosecution not bound to prove fact was unknown. Childress's case, 86 Ala. 77 (5 So. 775). An indictment which charges the murder of a man, whose name is to the grand jury unknown. is sufficient, and the allegation that the deceased "was supposed to be named C. Mehan," is surplusage.-Reese's case, 90 Ala. 624 (8 So. 818). When the indictment is sufficient without the allegation that a fact is otherwise unknown, such allegation is surplusage.-Carden's case, 89 Ala. 130 (7 So. 801). When the indictment alleges a fact or name to be unknown to the grand jury, and the evidence shows that it was known to that body, the variance is fatal.-Winter's case, 90 Ala. 637 (8 So. 556); Wells's case, 88 Ala. 239 (7 So. 272); Duvall's case, 63 Ala. 13. An indictment for the sale of mortgaged property, must allege the name of the holder of the mortgage, and cannot aver it is unknown.-Hill's case, 78 Ala. 1. An indictment against W. P. O'Brien, whose Christian name is otherwise unknown, is sufficient.— O'Brien's case, 91 Ala. 25 (8 So. 560). 7144. (4906) (4378) (4790) (4117) (567) Means unknown; so alleged. When the means by which the offense was committed are unknown to the grand jury, and do not enter into the essence of the offense, the indictment may allege that they are unknown to the jury. 66 Alleging killing to be by some means to the grand jury unknown is sufficient. Newell v. State, 115 Ala. 54 (22 So. 572); State v. Tempe, 40 Ala. 350. Allegation or other weapon, " insufficient.-Hornsby v. State, 94 Ala. 55 (10 So. 522). A rock is an instrument within the meaning of the term "instrument to the grand jury unknown."-Williams v. State, 144 Ala. 14 (40 So. 405). Indictment may allege in one count that the killing was effected by hitting deceased with a hatchet and in another count that the killing was done with some blunt instrument to the grand jury unknown.Smith v. State, 142 Ala. 14 (39 So. 329). 7145. (4907) (4379) (4791) (4118) (568) Legal presumptions, and matters judicially known.-Presumptions of law and matters of which judicial notice is taken need not be stated. Burning "jail of Wilcox county' sufficient; court judicially knowns ownership of county jail.-Sands v. State, 80 Ala. 201. Refers only to presumptions of law which forbid all dispute; not to disputable presumptions which may be overcome by proof.-Henry's case, 33 Ala. 389. See McDaniel's case, 76 Ala. 1; Cary's case, Ib. 78. Courts take judicial notice of public officers, and their official acts.-Beggs's case, 55 Ala. 108. Charters of municipal cor porations and special statutes conferring on them special powers.-Mayor v. Wetumpka Wharf Co., 63 Ala. 611; City Council v. Hughes, 65 Ala. 201. But not of the ordinances of municipal corporations.-Furham v. Mayor, 54 Ala. 263. Of a statute which, though local in its nature, extends to all persons who may come within territory described, and is therefore public statute.— Carson's case, 69 Ala. 235. But not of a private act (as turnpike charter.)Moore's case, 26 Ala. 88. Of notaries with powers of justice and other commissioned officers.-Coleman's case, 63 Ala. 93. That "lager beer" is a "malt liquor."-Watson's case, 55 Ala. 158. Of the meaning of "malt liquor as used in statutes.-Adler's case, 55 Ala. 16. Of the value of United States currency and treasury notes.-Grant's case, 55 Ala. 201; Duvall's case, 63 Ala. 12. Of journals of two houses of general assembly.-Moody's case, 48 Ala. 115. Of grand jury and terms of filing indictments.-Overton's case, 60 Ala. 74. Of the names of counties of this state.-Ib.; Reeves's case, 20 Ala. 33. Of things generally known.-S. & N. R. Co. v. Pilgreen, 62 Ala. Definition, Form and Contents. 305. Also of "Webster's Unabridged Dictionary" as standard authority for meaning of English words.-Adler's case, 55 Ala. 16. But not of laws of sister state.-Forsythe v. Preer, 62 Ala. 443. As to other matters of which courts take judicial notice, see Sprowl v. Lawrence, 33 Ala. 674; Allman v. Owen, 31 Ala. 167; McDaniel's case, 76 Ala. 1; Cary's case, Ib. 78. 7146. (4908) (4380) (4799) (4126) (576) Averment of intent to injure or defraud.-When an intent to injure or defraud is necessary to constitute the offense, it is sufficient to allege an intent to injure or defraud generally, without naming the particular person, corporation, or government intended to be injured or defrauded. (Forms 57, 58 [47, 48].) It is not necessary to name any particular person or corporation intended to be defrauded.-Williams v. State, 126 Ala. 50 (28 So. 632). Indictment not bad for alleging name of person whose name was forged; not necessary to allege that the company was either a partnership or a corporation.-Denson v. State, 122 Ala. 100 (26 So. 119). Common-law rule that the name of person intended to be defrauded must be alleged, changed by statute.-Lee v. State, 118 Ala. 672 (23 So. 669). Indictment need not aver sex of infant murdered.Clarke v. State, 117 Ala. 1 (23 So. 671). At common law the name of the party defrauded must be alleged particularly; now a general averment of the intent is sufficient.-Jones v. State, 50 Ala. 161. Under general averment of intent to defraud, the state may prove the particular person intended to be defrauded.-Williams's case, 61 Ala. 33; Mack's case, 63 Ala. 138; Headley's case, 106 Ala. 109 (17 So. 714). 7147. (4909) (4381) (4800) (4127) (577) Averment of ownership of property. When any property, upon or in relation to which the offense was committed, belongs to several partners or owners, it is sufficient to allege the ownership to be in any one or more of such partners or owners; or when the property is quasi public property, or belongs to an association, society, or collection of individuals, such as churches, meetinghouses, schoolhouses, lodges, etc., it shall not be necessary for the indictment to allege ownership, but it shall be sufficient to describe such property by the name by which it is commonly known, or in any other manner may sufficiently identify the property, upon or in relation to which the offense charged was committed. (Dec. 4, 1878, p. 46.) Ownership of storehouse properly laid in any member of the partnership owning it.-Smith v. State, 133 Ala. 145 (31 So. 806). Prior to February 28, 1887, the ownership of property belonging to the wife could be laid either in the husband or wife.-Robinson v. State, 84 Ala. 434 (4 So. 774); Lavender v. State, 60 Ala. 60; Davis v. State, 17 Ala. 415. But since the statute of that date, her ownership is complete and independent of the husband, and hence the ownership should be laid in her name if she owns it, unless it be an offense against the possession alone and the husband by reason of his relation or agency has the possession, when it may be laid in his name.-Rollins v. State, 98 Ala. 79 (13 So. 280); Kirby v. State, 139 Ala. 87 (36 So. 721); Payne v. State, 140 Ala. 148 (37 So. 74); Williams's case, 67 Ala. 183; White's case, 72 Ala. 195; Bass's case, 63 Ala. 108; Brown's case, 79 Ala. 51. 7148. (4910) (4382) (4812) (4138) (588) Description of animal in offense committed concerning same. In an indict Alternate Averments, and Joinder of Offenses. ment for the larceny of any animal, or for any other public offense committed in reference to any animal, it is sufficient to describe the animal by such name as, in the common understanding, embraces it, without designating its sex. (Form 5 [5].) See note to § 7324 (5049). ARTICLE 2. ALTERNATE AVERMENTS, AND JOINDER OF OFFENSES. 7149-7151. SECTION. SECTION. 7149. Statements of means or in 7151. Joinder of offenses in same count. 7149. (4911) (4383) (4796) (4123) (573) Statements of means or intents in alternative.-When the offense may be committed by different means, or with different intents, such means or intents may be alleged in the same count in the alternative. Indictment stating means by which murder was committed definitely by alternative averments in one count, sufficient.-King v. State, 137 Ala. 47 (34 So. 683); Newell v. State, 115 Ala. 54 (22 So. 572). But each alternative must describe the means with the same definiteness or particularity as would be required if the charge was made separately in a separate court.-King v. State, 137 Ala. 47 (34 So. 683); Walker v. State, 96 Ala. 53 (11 So. 401); Noble v. State, 59 Ala. 73; Johnson v. State, 32 Ala. 583. Averment that the act was done with intent to defraud or to cheat and defraud, each alternative sufficient. White v. State, 86 Ala. 69 (5 So. 674). Averment that assault was committed by pouring or attempting to pour turpentine and pepper upon person, sufficient.-Murdock v. State, 65 Ala. 520. Charge that defendant converted or applied to his own use a large sum of money insufficient.-Noble v. State, 59 Ala. 73. Charge that defendant obstructed a highway "by fence, bars, or other impediment,'' defective.-Johnson v. State, 32 Ala. 583. Indictment for selling mortgaged property that defendant "did sell, remove, or conceal a bale of cotton," sufficient.-Nixon v. State, 55 Ala. 120. Description of officer as justice of peace or notary public ex officio justice, sufficient.— Murphy v. State, 55 Ala. 252. At common law, indictment could not charge by disjunctive averments, so as to leave it uncertain what was intended to be relied upon; this has been changed materially by the statute.-Barnett v. State, 54 Ala. 579; Horton v. State, 53 Ala. 488. Disjunctive averments as to defendants being members of a corporation or association; uncertainty as to immaterial allegations no cause of demurrer.-Barnett v. State, 54 Ala. 579. Robbery committed against the will by violence to person or by putting him in such fear as to cause him unwillingly to part with his property sufficient. Chappell v. State, 52 Ala. 359. Indictment charging the appropriation of specified sums, or other large sums of money," is not within either of the three sections of this article, as showing different means, intents, and results, or offenses.-Noble's case, 59 Ala. 78. These statutes change the common-law rule, and are intended to prevent a multiplicity of counts.-Sparrenberger's case, 53 Ala. 481; Noble's case, supra; Horton's case, 53 Ala. 488; Thomas's case, 111 Ala. 51 (20 So. 617); King v. State, 137 Ala. 47 (34 So. 683). In offenses of same character which may be committed with different intent, the intent may be alleged alternately in same count, or in different counts. Carleton's case, 100 Ala. 130 (14 So. 472). Assault with a knife and simple assault may be alleged in the alternative.-Bonner's case, 97 Ala. 47 |