Foster v. State

38 Ala. 425

• Court: Supreme Court of Alabama
• Decided: January 15, 1863
• Status: Published

Opinion

STONE, J.

The only defense relied on in this case, is the twelve months statute of limitations in the prosecution of misdemeanors. — Code, § 3374. The bill of exceptions recites, that the offense was committed in December, 1859; that at the March term, 1860, the grand jury of the proper county found a true bill, charging that Nancy Foster “ did sell, give, or deliver, to a certain male slave, whose name and whose owner are unknown to the jurors, vinous or spiritous liquor, without an order in writing,” &c.; that at the August term, 1860, a demurrer to this indictment was sustained by the court, and the defendant ordered to be “recognized, in the sum of two hundred dollars, for her appearance at the next term of this court, to answer to a new indictment;” and that thereupon she was so recognized, with her three sureties. The indictment on which the defendant was tried, was found at the February term, 1861, and charged, that the defendant “did sell, give, or deliver, to a slave named Moses, belonging to James Chapman, vinous or spirituous liquor, without an order in writing, signed by the owner or master of such slave,” &c.

The Code (section 3376) declares, that “ a prosecution may be commenced, within the meaning of this chapter, by the issue of a warrant, or by binding over the offender.” Although the first indictment was defective, in this, that it did not sufficiently describe the slave to whom the alleged sale was made, (see Francois v. The State, 20 Ala. 83 ;) still the description therein contained was sufficiently specific to uphold the defendant’s recognizance, based thereon, to appear at the next court, and answer to a new indictment. The judgment entry, the recognizance, and the indictment first found, must all be construed together ; and thus construed, they sufficiently point to the indictment which was found at the Februaay term, 1861. “ It is not required that the recognizance should set forth with technical accuracy the indictment which the State may exhibit against the offender. This cannot well be done. But the offense for which the party is recognized to appear may be stated in general terms.” — See State v. Weaver, 18 Ala. 297; Williams v. State, 20 Ala. 63; State v. Eldred, 31 Ala. 395 ; Vasser v. State, 32 Ala. 586.

It being thus shown that this prosecution was commenced, by “ binding over 'the"offender,” in August, 1860, it is clear that the statute of limitations could not avail the defendant. The circuit court did not err in the charge given, nor in the refusal to charge as asked.

We need not inquire whether this case is brought within the influence of section 3532 of the Code. — See Rex v. Wheatly, 2 Burr. 1127 ; 5 Bac. Abr. 94 ; Rex v. Johnson, 1 Wilson, 325; Rex v. Inhabitants of Hilton, 1 Salk. 372; Leyton's case, Cro. Car. 584; King v. Wynn, 2 East, 226 ; Rex v. Webb, 3 Burr. 1468; U. S. v. Cooledge, 2 Gallison, 364; Reynolds v. Bell, 3 Ala. 57; Massey v. Walker, 8 Ala. 167 ; Ellison v. Mounts, 12 Ala. 472 ; State v. Krebs, 8 Ala. 951 ; State v. Dunham, 9 Ala. 76 ; Willingham v. State, 14 Ala. 539 ; State v. English, 2 Missouri, 182 ; Whar. Am. Cr. Law, § 523 ; 1 Arch. Cr. Pl. 102, note 1.

Judgment affirmed.