Pendleton v. State

329 So. 2d 140, 57 Ala. App. 452, 1975 Ala. Crim. App. LEXIS 1272

• Court: Court of Criminal Appeals of Alabama
• Decided: October 1, 1975
• Docket: 6 Div. 881
• Status: Published

Opinions

HARRIS, Judge.

Appellant was put to trial upon an indictment which, omitting the formal parts, reads as follows:

“The Grand Jury of said County charges that, 'before the finding of this indictment, EUGENE BIZELL PENDLETON, JR., whose name is otherwise unknown to the Grand Jury, and unlawfully, and with malice aforethought, killed Bobby Alvin Duke, Jr., against the peace and dignity of the State of Alabama.” (Emphasis added.)

Under the view we take of this case it is not necessary to review the evidence and the rulings of the Court. This indictment fails to set forth the quo modo of the homicide.

The conviction in this case cannot stand as it offends the first requirement of due process. The failure to charge an offense and the obvious harm to the defendant resulting therefrom, is the kind of defect involved in due process of law and it cannot be waived. Nelson v. State, 50 Ala.App. 285, 278 So.2d 734.

This case is reversed and remanded for a new trial.

REVERSED AND REMANDED.

All the Judges concur.