Knotts v. State

Alabama Court of Appeals

Knotts v. State

111 So. 48, 21 Ala. App. 620, 1927 Ala. App. LEXIS 204

CourtAlabama Court of Appeals

DecidedJanuary 11, 1927

Docket4 Div. 211.

StatusPublished

This text of 111 So. 48 (Knotts v. State) is published on Counsel Stack Legal Research, covering Alabama Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Knotts v. State, 111 So. 48, 21 Ala. App. 620, 1927 Ala. App. LEXIS 204 (Ala. Ct. App. 1927).

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Opinion

BRICKEN, P. J.

Under the statute (section 3258, Code 1923), the duty devolves upon this court to consider all questions apparent on the record or reserved by bill of exceptions, and this court must render such judgment as the law demands.

We find, upon examination of the record in this case, that the indictment which attempts to charge the offense of an assault with intent to murder is fatally defective as to the felony charge, in that it fails to designate the person upon whom the felonious assault was directed, the concluding paragraph of the indictment is, “with the intent to murder” ; the word “him” not being included. Turk v. State, 140 Ala. 110, 37 So. 234. In the Turk Case, supra, an indictment identical with the indictment here, was held by the Supreme Court to be sufficient to charge an assault with the circumstances of aggravation, but in effect held that such indictment is so defective as that a conviction of the felonious assault could not be sustained.

The verdict of the jury in this case, and the judgment of conviction based thereon, is for the felonious charge of assault with intent to murder. From what has been said, the conviction of this appellant for the felonious charge, above stated, cannot be sustained under the indictment in this case. Upon authority of Turk v. State, 140 Ala. 110, 37 So. 234, the judgment of conviction from which this appeal was taken is reversed, and the cause remanded. Other questions presented need not be discussed.

Reversed and remanded.

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BRICKEN, P. J.

Under the statute (section 3258, Code 1923), the duty devolves upon this court to consider all questions apparent on the record or reserved by bill of exceptions, and this court must render such judgment as the law demands.

We find, upon examination of the record in this case, that the indictment which attempts to charge the offense of an assault with intent to murder is fatally defective as to the felony charge, in that it fails to designate the person upon whom the felonious assault was directed, the concluding paragraph of the indictment is, “with the intent to murder” ; the word “him” not being included. Turk v. State, 140 Ala. 110, 37 So. 234. In the Turk Case, supra, an indictment identical with the indictment here, was held by the Supreme Court to be sufficient to charge an assault with the circumstances of aggravation, but in effect held that such indictment is so defective as that a conviction of the felonious assault could not be sustained.

The verdict of the jury in this case, and the judgment of conviction based thereon, is for the felonious charge of assault with intent to murder. From what has been said, the conviction of this appellant for the felonious charge, above stated, cannot be sustained under the indictment in this case. Upon authority of Turk v. State, 140 Ala. 110, 37 So. 234, the judgment of conviction from which this appeal was taken is reversed, and the cause remanded. Other questions presented need not be discussed.

Reversed and remanded.

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111 So. 48, 21 Ala. App. 620, 1927 Ala. App. LEXIS 204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knotts-v-state-alactapp-1927.

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