State v. Dunham , 9 Ala. 76 ( 1846 )

COLLIER, C. J.

The point referred to this Court, presents but a single inquiry, viz : does the entry of nolle prosequi upon the first indictment, and the consequent proceedings, bring the case within the 11th section of the 8th chapter of the Penal Code, so as to -prevent the operation of the act which limits the prosecution of misdemeanors to one year after the commission of the offence. [Clay’s Dig. 444, § 38.] The provision of the Penal Code referred to, is as follows: “ Whenever, in the progress of a criminal trial, it shall be found that there is such a material variance between the allegations of the indictment and the proof adduced, as will, for that cause, authorize the acquittal of the accused, and he shall not assent to the amendment of the indictment, so as to correspond with the proof, it shall be lawful for the solicitor with the leave of the court, to enter a nolle proseqtii, at any time before the jury shall retire, and prefer another indictment at the same, or any subsequent term of the court, and the period of time elapsing between the preferring of the first indictment and the second, or other subsequent indictment, shall be deducted from any term limited for the prosecution of tlie offence, for which the accused is indicted.” [Clay’s Dig. 439, § 11.]

The offences charged in the first and last indictment are unquestionably of the same description, yet they are entirely dissimilar in their material allegations. True, they each of them charge the defendant as the offender against the law; but there is nothing to indicate that they were each intended to punish the same offence. The first charges the selling of one hair comb to Joshua, A. Loioe; while the latter charges the sale of one bonnet and one pair of shoes to Henry Williams.

We cannot think that the enactment under consideration, contemplated an amendment of every constituent of the of-fence, and upon the refusal of the defendant to assent to it, that the State’s counsel might enter a nolle prosequi, and indict the defendant anew, without prejudice as it respects the statute of limitations. In an indictment for a horse, hog, &c. it would doubtless be permissible to force the defendant to consent to an amendment as to the color or sex of the animal, or else submit to another indictment without prejudice. But the statute cannot be carried so far as to shield from the operation of the act of limitations a second indictment for stealing a cow, where the first charged the larceny of a hog, or a horse. So the vending by a pedlar of a piece of cotton cloth, where the proof showed the fabric to be hemp or flax, would be such a variance as the framers of the statute had in view.

Notwithstanding the great liberality with which amendments axe tolerated in civil proceedings, we have repeatedly held, that the plaintiff shall not, in his. declaration, be permitted to make a radical departure from the cause of action indicated by his writ. Thus where the sole ground of action indorsed, was a note for the payment of a certain number of horses to A, the plaintiff should not be allowed to declare upon a note for the payment of cows to B. If this be the law in respect to civil actions, is greater latitude permissible in criminal proceedings ? Upon principles of analogy, we think not.

In the case at bar, the defendant was charged in the first indictment, with selling a hair comb to Joshua A. Lowe, and in the second, one bonnet and one pair of shoes to Henry Williams. The cases are essentially different, as it respects the proof by which they are to be made out, though the law may award to each the same measure of punishment. The last indictment makes a new case, is an entire departure from the first, and cannot claim the sanatory influence of the statute, which the Circuit Court applied.

The judgment is consequently reversed.