Elam v. State

26 Ala. 48

• Court: Supreme Court of Alabama
• Decided: January 15, 1855
• Status: Published

Opinion

G-OLDTHWAITE, J.

— We see no error in the action of the court in overruling the motion made by the defendant below, to require the solicitor to state in advance for which of the different varieties of retailing he was to be proceeded against. The indictment, it is true, is general in its form, but its sufficiency was determined when this case was last here (25 Ala. 53) ; but the fact that it is general and broad enough, under the Code, to allow evidence of any violation against the law of retailing, is not a sufficient reason for requiring the prosecuting officer to state beforehand the particular offence he intends to prove. At the common law, under an indictment containing but a single count, evidence of either one of several distinct and separate offences might be given in evidence, as in cases of different assaults committed on the same person, different affrays between the same persons, and in many other cases. If a defendant were to announce that he had committed several assaults on the person named in the indictment, and not knowing for which of these assaults the indictment was found against him, ask as a right that the prosecuting officer should state for which one of these offences he intended to proceed, we apprehend the court might very properly overrule his motion. The case at bar may be stronger than the one "put, but it depends upon identically the same principle.

We think, however, the court erred, in not confining the State to the same offence in relation to which evidence had been offered on the former trial. The rule of the common law was, that where but one offence was charged, the evidence must be confined to one ; and the Code has not changed that principle, and could not, perhaps, do so without violating the constitutional right which the defendant has of having the offence passed upon by a grand jury. It allows, it is true, in certain cases, more than one offence to be charged, even in the same count (§ 3506) ; and when this is done, evidence as to each offence may be offered. The general form of the indictment allowed by section 1059 of Code, against retailers, does not, if followed, include more than one offence; and the provisions in the same section, which allow any act in violation of the law to be proved under such an indictment, cannot, upon any sensible rule of construction, be intended to mean more than one act. In civil actions, if but one act is charged in the declaration, the plaintiff cannot give evidence of any other; and it is also laid down, that if he prove one, he cannot waive that, and prove another.—Stante v. Pricket, 1 Campb. 473; 2 Greenl. Ev. § 86. In criminal cases, where the grand jury have by their bill found but a single offence, the presumption is, unless it otherwise appear from the indictment, that the act to which the evidence offered by the State relates, is the one to which the indictment refers ; ■ and if that presumption is correct, it would necessarily exclude evidence as to any other. The true rule, therefore, is to hold the State to the act to which the testimony relates, if it can be covered by the indictment, and but one offence is charged. If the prosecuting officer deems it for the interest of the State, that evidence as to different offences should be offered, he must frame the indictment accordingly ; which is in every case very easily done. We have laid down the rule generally, and think that, after the election is once made by offering evidence on the part of the State, it holds through all future stages. The same reasons exist for its application on the second trial as on the first. The election once made, in the mode we have stated, becomes an act in the cause, and cannot be separated from it.

Judgment reversed, and cause remanded.