Alternate Averments, and Joinder of Offenses.

(12 So. 408). Each alternative averment must state a complete offense.Hornsby's case, 94 Ala. 55 (10 So. 522); May's case, 89 Ala. 37 (8 So. 28). Indictment alleging defendant killed deceased by stabbing him with a knife, or other weapon, is bad on demurrer, but not after judgment.-Hornsby's case, 94 Ala. 55 (10 So. 522). Indictment for murder is sufficient which alleges alternatively that deceased was killed by striking him in the head with some hard substance, to the grand jury unknown, or by choking him with a piece of fuse or cord.-Wilson's case, 84 Ala. 426 (4 So. 383). Indictment for burglary may allege in one count that the act was committed with intent to steal or to commit rape.-Dismuke's case, 83 Ala. 287 (3 So. 671).

7150. (4912) (4384) (4797) (4124) (574) Same as to different results. When an act is criminal, if producing different results, such results may be charged in the same count in the alternative.

These statutes not applicable where particular acts or means are followed by more comprehensive generic term, which is immediately preceded by words "or other."-Johnson's case, 32 Ala. 583; and other cases cited in note to § 6415 (4417). An averment as "justice of peace or notary public" allowable. -Murphy's case, 55 Ala. 252. Also did remove or conceal one bale of cotton,' "etc.-Nixon's case, 55 Ala. 120; Atwell's case, 63 Ala. 61. Also did steal "national banknotes, or gold or silver coin," etc.-Wesley's case, 61 Ala. 282. Did sell vinous or malt liquors" to a minor.-Adler's case, 55 Ala. 16. Also that defendants were "members or partners of a corporation or co-partnership."-Barnett's case, 54 Ala. 579. Also that one maliciously injured a 66 mare or an ox."-Burgess's case, 44 Ala. 190. Also to allege that assault was committed by pouring, or attempting to pour, a mixture of spirits

of turpentine and pepper."-Murdock's case, 65 Ala. 520. Also did carnally know or abuse, etc.-Johnson's case, 50 Ala. 456. But insufficient to allege house burned as a "barn or stable," "a barn house or building.' Horton's case, 60 Ala. 72. Also defective to aver that defendant "sold, bartered, or otherwise disposed of, or permitted to be taken, spirituous, vinous, or malt liquors in less than,'' etc.-Raisler's case, 55 Ala. 64. See, also, Hurst's case, 86 Ala. 606 (6 So. 120); Gunter's case, 111 Ala. 23 (20 So. 632). That defendant falsely forged instrument which purported to discharge or diminish a pecuniary demand, sufficient.-Allen v. State, 79 Ala. 34. Indictment averring that instrument was or purported to be the act of a given person, bad on demurrer.-Horton v. State, 53 Ala. 488. Statute only intended to avoid multiplicity of counts.-Horton v. State, 53 Ala. 488.

7151. (4913), (4385) (4798) (4125) (575) Joinder of offenses in same count.-When offenses are of the same character, and subject to the same punishment, the defendant may be charged with the commission of either in the same count in the alternative.

Offenses of equal degree, subject to the same punishment, may be charged in the same count and in the alternative.-Sims v. State, 135 Ala. 61 (33 So. 162); McClellan v. State, 118 Ala. 122 (23 So. 732). Ownership of property stolen may be alleged in the alternative.-Lowe v. State, 134 Ala. 154 (32 So. 273). Two or more offenses may be charged in one indictment as having been committed by the same defendant, if the offenses are of the same character.-Lowe v. State, 134 Ala. 154 (32 So. 273); Wooster v. State, 55 Ala. 217; Johnson v. State, 29 Ala. 62; Cawley v. State, 37 Ala. 152. Defendant may be charged in the alternative in the same count with unlawfully selling, giving away or otherwise disposing of spirituous liquors.-McClellan v. State, 118 Ala. 122 (23 So. 732). At common law a single count charging two distinct offenses was vicious, it was double pleading and not allowed, but in certain enumerated cases, two or more distinct offenses could be

Alternate Averments, and Joinder of Offenses.

charged in separate counts.-Thomas v. State, 111 Ala. 51 (20 So. 617). In this state, by judicial construction, if the offenses are of the same nature, belong to the same family of crime, have the same mode of trial and nature of punishment, they may be joined in separate counts, though punished differently. The statute authorizes the offenses to be joined in the same count in the alternative to avoid multiplicity of counts, but an indictment charging a single offense in the alternative is not supported by proof of two distinct offenses, the variance is fatal.-Thomas v. State, 111 Ala. 51 (20 So. 617). A general verdict of guilty under an indictment charging two distinct offenses, if the sentence or punishment is not greater than is prescribed for one of the offenses.-Sampson v. State, 107 Ala. 76 (18 So. 207). An indictment charging a felony, or the highest grade or degree of the offense by operation of law, charges every lesser offense included in the one charged.-Horn v. State, 98 Ala. 23 (13 So. 329). See 136 Ala. 85 (33 So. 878); 102 Ala. 156 (15 So. 438); 94 Ala. 90 (10 So. 509). Indictment for robbery may charge larceny also.-Morris v. State, 97 Ala. 82 (12 So. 276). Indictment may charge in the alternative and in the same count that the defendant committed one or the other of two offenses or different grades of the same offense.-Johnson v. State, 50 Ala. 456. Each separate alternative must contain a substantive offense.-Noble v. State, 59 Ala. 73. This statute merely permits to be charged in one count, what the common law permitted in different counts, and is not unconstitutional.Burdine's case, 25 Ala. 60; Sherrod's case, Ib. 78; Horton's case, 53 Ala. 488; Sparrenberger's case, Ib. 481; Noble's case, 59 Ala. 78; Sampson's case, 107 Ala. 80 (18 So. 207). But each alternative averment must present an indictable offense. Pickett's case, 60 Ala. 77; Horton's case and Noble's case, supra; Howard's case, 108 Ala. 571 (18 So. 813); Orr's case, 107 Ala. 35 (18 So. 142). Two grades of same offense, whether misdemeanor or felony, visited with same kind of penalty, may be joined in same count.-Ward's case, 22 Ala. 16; Swallow's case, Ib. 20; Ben's case, Ib. 9; Mooney's case, 8 Ala. 328; Barber's case, 34 Ala. 213. See, further, as to the doctrine of joinder of offenses in same or different counts.-Wooster's case, 55 Ala. 217 (overruling Norvell's case, 50 Ala. 174); Quinn's case, 49 Ala. 353; Johnson's case, 35 Ala. 370; Howard's case, 108 Ala. 571 (18 So. 813); Broughton's case, 105 Ala. 103 (16 So. 912); Grimes's case, 105 Ala. 86 (17 So. 184); Walker's case, 97 Ala. 85 (12 So. 83); Bell's case, 48 Ala. 684; Hill's case, 67 Ala. 39; Reynolds's case, 92 Ala. 44 (9 So. 398); McGuff's case, 88 Ala. 150 (7 So. 35); Carleton's case, 100 Ala. 130 (14 So. 472). As to the right to make the prosecutor elect, see Mayo's case, 30 Ala. 32; Hugh's case, 35 Ala. 351; Elam's case, 26 Ala. 48: Smith's case, 52 Ala. 384; Johnson's case, 29 Ala. 62; Bonham's case, 65 Ala. 456; Oxford's case, 33 Ala. 416; Seibert's case, 40 Ala. 60; Beason's case, 72 Ala. 191; Beasley's case, 59 Ala. 20; Bass's case, 63 Ala. 108; Peacher's case. 61 Ala. 22; Ex parte Tompkins, 58 Ala. 71; Orr's case, 107 Ala. 35 (18 So. 142); Howard's case, 108 Ala. 571 (18 So. 813); Tanner's case, 92 Ala. 1 (9 So. 613); Butler's case, 91 Ala. 87 (9 So. 191). Election on joinder of several misdemeanors not required, and prosecution may seek a conviction on all of them, and they may be tried at same time.-Wooster's case, 55 Ala. 217. A felony and a misdemeanor cannot be joined, even in separate counts.-James's case, 104 Ala. 20 (16 So. 94); Adam's case, 55 Ala. 143. Whether an indictment charging in the same count the murder of two infants by starvation or exposure charges one or two offenses, quaere.-Griffith's case, 90 Ala. 583 (8 So. 812). An indictment which charges in a single count the unlawful killing of an ox and a cow does not charge two offenses; there is no room for an election, but there can be no conviction if proof shows only killing of one, or of both by separate acts.-Thomas's case, 111 Ala. 51 (20 So. 617). Where several offenses are joined, either in the same count or in separate counts, the verdict of guilty must show of what offense, but need not express it "ipsissimis verbis."-Davis's case, 52 Ala. 357; White's case, 74 Ala. 31; Kilgore's case, 74 Ala. 9; Sampson's case, 107 Ala. 76 (18 So. 207). Burglary and grand larceny may be joined in the same indictment.-Lucas v. State, 144 Ala. 63 (39 So. 821). Each alternative must be construed as a separate count.-Smith v. State, 142 Ala. 15 (39 So. 329).

Presenting, Filing, Withdrawing, Certifying and Recording Indictment.

ARTICLE 3.

PRESENTING, FILING, WITHDRAWING, CERTIFYING AND RECORDING INDICTMENT,

7152-7154.

SECTION.

7152. Indictments filed, but not entered on minutes; inspection of.

SECTION.

7153. Withdrawal and filing of indictment.

7154. Secret records of indictments made and kept by clerk; uses of.

7152. (4914) (4386) (4821) (4148) (598) Indictments filed, but not entered on minutes; inspection of.-All indictments must be presented to the court by the foreman of the grand jury, in the presence of at least eleven other jurors; must be indorsed "filed," and the indorsement dated and signed by the clerk; but no entry of an indictment found must be made on the minutes, nor must any indictment be inspected by any other person than the solicitor, the presiding judge, and the clerk of the court, until the defendant has been arrested, or has given bail for his appearance.

(Clay's Digest, p. 460, § 1.) Indictments are presented to court in open session by grand jury as a body; if any bill so presented is unauthorized, the fact should then be made known.-Hall v. State, 134 Ala. 90 (32 So. 750); Spigener v. State, 62 Ala. 383. The presenting of the bill to the court is a solemn finding that the bill presented, so indorsed and filed, is the finding of at least twelve of the grand jury. Spigener v. State, 62 Ala. 383. The only two authorized methods of obtaining jurisdiction over the person of a defendant charged with crime is by indictment or information or by warrant of arrest supported by affidavit in writing.-Ex parte State, 71 Ala. 371. Court has inherent power to substitute indictment where it is lost or destroyed during the trial. Bradford v. State, 54 Ala. 230. The indorsement "a true bill," signed by the foreman of the grand jury, is the life of the indictment, and when this is made and is returned, no clerical omission can render it invalid; the court can require the clerk to indorse upon the indictment "filed".at any time while the case is in fieri, and it is in fieri until final judgment is rendered. Ex parte Winston, 52 Ala. 419. Court has control over these matters and may cause clerk to indorse, etc., as of date of, filing, etc., at any time during term.—Franklin's case, 28 Ala. 9. Returning and filing need not appear on minutes.-Mose's case, 35 Ala. 421; Russell's case, 33 Ala. 366. See, also, Stanley's case, 88 Ala. 154 (7 So. 273). When cannot arrest judgment on account of informality, in finding, returning, or filing.-Russell's case, 33 Ala. 366. What entry shows sufficient return and presentation.—MeCuller's case, 49 Ala. 39; Wesley's case, 52 Ala. 182. When date of filing indorsed as evidence.-Sellers's case, 52 Ala. 368. It is no valid objection to indictment that foreman signs it by initials of Christian name only, or that solicitor indorses on it names of state witnesses after filing, without order of court.-Germolgez's case, 99 Ala. 216 (13 So. 517). Indictment indorsed "true bill," signed by foreman, marked "filed" and dated by clerk is a substantial compliance with statute.-McKee's case, 82 Ala. 32 (2 So. 451). Solicitor need not sign indictment.-Cross's case, 78 Ala. 430; Joyner's case, 78 Ala. 448. It is no ground for objection that it is signed by deputy solicitor.-Ib.

7153. (4915) (4387) (4822) (4149) Withdrawal and filing of indictment.-In all criminal cases in the circuit court, or

Amendments: Nolle Prosequi; New Indictment.

courts of like jurisdiction, in which a capias has issued for two terms, and has been returned "not found," the solicitor may, by leave of the court, withdraw and file the indictment, with leave to reinstate the same when the ends of justice require such reinstatement.

(Nov. 24, 1866, p. 18.) When operates a discontinuance, and how avail able to defendant.-Drinkard's case, 20 Ala. 9; Scott's case, 94 Ala. 80 (10 So. 505).

7154. (4916) (4388) Secret records of indictment made and kept by clerk; uses of.-The clerk of the court in which indietments are returned shall, within twenty days after the filing thereof, and without allowing them to be taken out of his custody or control, record the same, with the indorsement thereon, in a well-bound book, which shall be properly indexed and kept secret, as indictments are required to be kept secret, before the arrest of the defendant; and if the office of the clerk is furnished with an iron safe or vault, it shall be kept therein; but the court may require the production of such book on the trial of the defendant, for comparison of the indictment against such defendant with the record thereof, only in cases where the trial is had on a certified copy. of the indictment as provided by law.

(Jan. 23, 1885, p. 98, § § 1, 3.)

ARTICLE 4.

AMENDMENTS; NOLLE PROSEQUI; NEW INDICTMENT. 7155, 7156.

SECTION.

7155. Amendment allowed by consent on account of variance.

SECTION.

7156. When nol. pros. entered, and new indictment ordered to be preferred.

7155. (4917) (4389) (4816) (4143) (593) Amendment allowed by consent on account of variance.-An indictment may be amended, with the consent of the defendant, entered of record, when the name of the defendant is incorrectly stated, or when any person, property, or matter therein stated is incorrectly described.

Indictment should not be amended without the consent of the defendant, even as to immaterial matters.-Johnson v. State, 46 Ala. 212. The fact that defendant consented only to avoid being bound over to answer a new indictment does not destroy the validity of the amendment.-Ross v. State, 55 Ala. 177. Amendments correcting misdescriptions as to name; misspelling of name, if the pronunciation would be the same does not vitiate it; great latitude is allowed in the pronunciation of proper names.-Page v. State, 61 Ala. 16. A mere abortive attempt to prosecute, coming to naught from its own imperfections, as from a valid indictment, does not put the defendant in jeopardy.-Berry v. State, 65 Ala. 117. Conclusiveness and finality of judg ments of courts having jurisdiction of subject-matter and person.-Berry v.

Amendments; Nolle Prosequi; New Indictment.

State, 65 Ala. 117. Where defendant was indicted for stealing two sacks of twine and the evidence showed that he stole some twine and after the caption put it into sacks, there was a variance.—McClellan v. State, 121 Ala. 18 (25 So. 725). Oral pleas, except the plea of guilty or not guilty, delivered in open court, received by the clerk and entered on the minutes, are unknown in our practice.-Crawford v. State, 112 Ala. 1 (21 So. 214). Where a demurrer to one of two counts is sustained, court may quash the indictment and hold the defendant to answer another indictment.-Rogers v. State, 126 Ala. 40 (28 So. 619). Where there is a fatal variance, defendant held to answer another indictment.-McClerkin v. State, 105 Ala. 107 (17 So. 123). The names of persons must be proven as alleged, else variance under which indictment should be quashed and defendant held.-Henderson v. State, 105 Ala. 139 (16 So. 927). After consenting to an amendment, defendant cannot claim he was entitled to an acquittal.-Reynolds v. State, 92 Ala. 44 (9 So. 398). Amendment of complaint in county court.-Perry v. State, 78 Ala. 22. Authority of court to order another indictment when defendant refuses to consent to amendment.-Bube v. State, 76 Ala. 73. The amendment of the indictment without consent of defendant in an immaterial matter is reversible error. Gregory v. State, 46 Ala. 151. Consent of defendant must appear of record, and amendment must follow the terms of consent.-Shiff's case, 84 Ala. 454 (4 So. 419); Stone's case, 105 Ala. 60 (17 So. 114). Amendment striking out one count is equivalent to a nol. pros. of that count, and is not a reversible error.-Salm's case, 89 Ala. 56 (8 So. 66). By consenting to amendment after trial entered upon, defendant waives all objection as to being in jeopardy.-Reynold's case, 92 Ala. 44 (9 So. 398). Defendant should not be held to answer new indictment unless he refuses to allow it to be amended.-Washington v. State, 143 Ala. 62 (39 So. 388).

7156. (4918) (4390) (4817) (4144) (594) When nol. pros. entered, and new indictment ordered to be preferred.-If the defendant will not consent to such amendment, the prosecution may be dismissed at any time before the jury retires, as to the count in the indictment to which the variance applies; and the court may order another indictment to be preferred at the same or at a subsequent term, in which case an entry of record must be made to the effect following:

V.

"The State In this case, it appeared from the evidence that there was a variance between the allegations A. B. of the indictment and the proof in this (setting out the variance); or it appeared from the evidence that the defendant's name was (stating it); and the defendant not consenting to allow the indictment to be amended, the prosecution was dismissed before the jury retired, and another indictment was ordered to be preferred."

Pendency of another indictment no ground for plea in abatement, but acquittal or conviction under another indictment may be.-White v. State, 86 Ala. 69 (5 So. 674). Proceedings removed from county to circuit court and there quashed not within this statute.-Bube v. State, 76 Ala. 73. Indictment for carrying on lottery as foundation for bar to prosecution for gaming or keeping gaming table.-Buckalew v. State, 62 Ala. 334. Defendant's refusing to consent to amendments, prosecution may be dismissed and a new indictment ordered.-Page v. State, 61 Ala. 16. Where a demurrer is sustained or quashed, or prosecution vacated, the discharge of the prisoner does not necessarily follow.-Ex parte Graves, 61 Ala. 381. Where the offenses charged in the first and second indictments are separate and distinct, question whether 42-AC-VOL. III