Gregory v. State

46 Ala. 151

• Court: Supreme Court of Alabama
• Decided: June 15, 1871
• Status: Published

Opinion

FECK, O. J.

We do not think it necessary to determine whether the demurrer to the indictment might not have been overruled without error, but, being sustained, the court below thereby held it to be insufficient.

An indictment is the act of the grand jury, and should be held to be inviolable.' To permit it to be amended, even in a matter that might seem to be immaterial, without the consent, and against the objection of the defendant, would be a dangerous practice, that, so far as we know, has never received the sanction of this court.

Section 4143 of the Revised Code says, “ an indictment may be amended with the consent of the defendant, when the name of the defendant is incorrectly stated, or when any person, property, or matter, therein stated, is incorrectly described.” We think this equivolent to a declaration, on the part of the legislature, that an indictment can not be amended in any case, without the defendant’s consent.

We therefore feel constrained to reverse the judgment of the court below, and to remand the case for further proceedings in that court.