Ex parte Whitaker

43 Ala. 323

• Court: Supreme Court of Alabama
• Decided: June 15, 1869
• Status: Published

Opinion

Per Curiam.

The judgment of the judge of probate must be affirmed. The transcript shows enough to remand the petitioner into the custody of the sheriff.

The indictment is clearly defective, and, no doubt, a demurrer to it would be sustained. It should have stated the name of the person assaulted. The original complaint states the name of person assaulted, and. the indictment has a blank for the name, which, by mistake, was probably omitted, to be inserted either by the solicitor who prepared the indictment, or by the foreman of the grand jury who found it.

By § 4314 of the Revised Code, no assignment of errors is necessary in criminal cases, but this court must look to the whole record, and render such judgment on the record as the law demands.

Taking the whole record together, we think enough appears to retain the accused in custody until the next circuit court, which can either discharge the party, or permit the defective indictment to be ndl prossed, and order another one to be preferred, or, the present indictment may be amended, by the consent of the accused. A defect in an indictment is not a sufficient ground to discharge an accused party, on habeas corpus, in vacation.

The judgment of the court below is affirmed, at the costs of appellant, and his sureties upon the appeal bond.