Bryant v. State

36 Ala. 270

• Court: Supreme Court of Alabama
• Decided: June 15, 1860
• Status: Published

Opinion

STONE, J.

It was declared in the case of Nabors v. The State, (6 Ala. 200,) and must be regarded as settled, that the terms of our circuit courts expire at 12 o’clock of the last Saturday night of the terms fixed bylaw.; — See, also, State, ex rel. Battle, 7 Ala. 259. It-is also well settled, (and we have no authority to disregard this statutory rule,) that a bill' of exceptions, not signed during the term, or within ten days thereafter pursuant to consent of counsel in writing, is not a part of the record. —Code, §§2358, 3649; Shep. Digest, 435, §4; Stein v. McArdle, 25 Ala. 561. Under these plain rules, we cannot look, for any purpose, to what is claimed in this record as a bill of exceptions. This narrows our inquiry to what appear» on the face of the indictment, as it is now presented.

[2.] The alleged defect in the present indictment, and which is pressed on our consideration for a reversal, is, that it does not sufficiently identify and describe the person alleged to have been slain. The indictment charges, that the defendant “ killed-- Butler, whose Christian

name is to the grand jury unknown.” In 2 Sale’s Pleas of the Crown, 181, it is said: “ An indictment of murder cujusdum ignoii is good.” — See, also, Hawk. P. C. book 2, ch. 25, §71; Whar. Am. Cr. Law, § 251; State v. Irwin, 5 Blackf. 343; Rex v. Mary Smith, 6 C. & P. 151; Reg. v. Campbell, 1 C. & K. 82; 3 Greenl. Ev. § 22. In the case of the State v. Jackson, (4 Blackf. 49,) the person was described as “an ludian of this State, of the Miami nation of Indians, the name of which said Indian to the jurors aforesaid is wholly unknown.” So, in Reed v. The State, (16 Ark. 497,) the person slain was described as “ a certain Wyandotte Indian, whose name is .unknown to the grand jury.” These averments were ruled sufficient. So, in Cameron v. The State, (13 Ark. 712,) the defendant was indicted for assaulting “ one Rice, whose Christian name is to the grand jurors aforesaid unknown;” and the conviction was sustained. The Code of Alabama (section 3505) declares, that “ The indictment must be certain, as to the person charged; but when his name is unknown to the jury, it may be so alleged without any further idendifieation.” This is a legislative declaration that, as.to the 'party charged, the. words that his name is to the grand jurors unknown, supply the requisite certainty. We can perceive no reason for requiring greater certainty in the description of the party slain, than the statute requires in describing the party accused; although it i& admitted that the effect of a misdescription in the former case may be more serious thau in the latter. We regard section 3505 of the Code as indicating a policy to be observed on kindred questions.

The judgment of the circuit court is affirmed, and the sentence of the law must be executed.