Nugent v. State

19 Ala. 540

• Court: Supreme Court of Alabama
• Decided: June 15, 1851
• Status: Published

Opinion

COLEMAN, J.

The prisoner was convicted' of the offence in this case at a special term of the City Court of Mobile. The bill of indictment was found by a grand jury organized at, said term, and the question arises whether the court had the power to originate a criminal proceeding at said special term 1

After a careful examination of all the statutes on the subject, we are satisfied that the court rightfully exercised jurisdiction in the matter.

By. the third section of the act to establish a Criminal Court in the city of Mobile, it is enacted “ that said court shall hold three terms in each year, commencing on the first Mondays in November, February and June, and may, by special adjournment, hold such other terms as may be necessary for despatch of business.”

The fourth section of the act declares “ that said court shall have concurrent jurisdiction with the Circuit Courts in the administration of the criminal law in said county.”

By the act of 1807 it was enacted, that a special session of any Circuit Court may be held by order of the judge or judges of the same, whenever it may be necessary for the trial of criminal causes; and the act of 1819 declares that said judges shall have the power, on the application of any person charged with a criminal offence, to hold a special session for the trial of such person,

The twenty^sixth section of the tenth chapter of the Penal Code provides for the empannelling of a grand jury at any extra or special term of the Circuit Court.

From these statutes wo think the jurisdiction of the court in the case is clearly deducible.

The objection that the record does not show affirmatively that the grand jury was drawn, summoned and empanneled according to the act, cannot bo supported. It has been uniformly held by this court that if such objections could have availed the defendant, they should have been pleaded in abatement. — The State v. Greenwood, 5 Por. 474; The State v. Pile & Pile, 5 Ala. 72; Shaw v. The State, 18 ib. 547.

The defendant moved the court below in arrest of judgment,, on the ground of the insufficiency of the indictment. The part ©f the indictment objected to reads thus: “ That John Nugent, late of said county, in and upon one Hannah Smith, (she, the said Hannah Smith, then and there being a female child under the age of ten years,)_ feloniously did make an assault, and her, the said Hannah Smith, then and there feloniously did abuse in the attempt carnally know.”

The indictment is founded on the seventeenth section, third chapter of the Penal Code, which is in these words: “ Every-person who shall carnally know, or abuse in the attempt to car-, nally know, any female child under the age of ten years, shall,, on conviction, he punished by imprisonment in the Penitentiary for life.” We think the indictment fails to give a full and sufficient description of the. offence in omitting to specify the indi» vidual whom, the defendant attempted to carnally know.. The attempt carnally to know the infant constitutes the enormity of' the offence, and the indictment ought certainly to. state with, legal precision and certainty, upon whom the attempt was made. The rule laid down in the standard works on criminal pleading-as to the statements in an indictment, is, that all the ingredients of the offence with which the defendant is charged, the facts, circumstances and intent concerning it,, must be set forth with certainty and precision. — Arch. Cr. Pl. 28; Chitty’s Cr. Pl. 169. The rule is also without exception, that an indictment must be certain as to the person against whom the offence-was committed.. In indictments for offences against the persons or property of individuals, the Christian name and surname of the party must bo stated, if known, and if unknown, as- in the case of the murder of a stranger, he must be described as a person unknown.—2 Hawk C. 25, § 71-2; 2 Hale 181; Arch. Cr. Pl. 45. The omission to state the. name,, or stating the wrong name, is fatal to the indictment. The Attorney General, however, does not controvert the law referred to, but contends that by a proper construction of the indictment, the words “ carnally know” must refer to Hannah Smith. We are unable to, reach that conclusion. Even if we supply the word to, beforc-the words “carnal,. bj know,” in the indictment, by no rule of grammatical construetion or legal intendment, can we say they refer to Hannah Smith.

;The judgment below is reversed, and the cause remanded, that ,a good indictment may be found.

DARGAN, C. J.

My own impressions, uninfluenced by the opinion of my brothers, would have led to an affirmance of tho judgment, but as' I cannot say that my mind is free from all ..iioubt as to the sufficiency of the indictment, I yield to their ■opinion, and join in. reversing the judgment.