Reeves v. State , 20 Ala. 33 ( 1852 )

DAK GAN, C. J.

— The plaintiff in error was indicted in the Circuit Court of Butler, for an assault and battery committed upon one Alexander McCarty. When required to plead, he demurred to the indictment, but his demurrer was overruled, and upon the trial he was convicted. The cause is brought here by writ of error, and the sole question is the sufficiency-of the indictment. The language of the indictment is as follows: “ The State of Alabama, Butler county, Circuit Court, Fall Term, Eighteen hundred and fifty. The grand jurors of the State of Alabama, elected, empannelled, sworn and charged to inquire for the body of the county of Buter, upon their oath present, that James Andrew Reeves, late of said county, on the first day of August, in the year of our Lord one thousand eight hundred and fifty, with force and arms, in the county aforesaid, in and upon one Alexander McCarty, in the peace of Grod and said State then and there being, did make an assault,” &c.

It is insisted, that the indictment is defective, because it does not show in what county the offence was committed; .that the words in the body of the indictment, “in the county aforesaid,” must refer to the last antecedent, or the last county named in the indictment, and therefore refer to Buter county, and not to Butler county, stated in the margin; and as there is no such county in the State as Buter, the words, “ in the county aforesaid,” do not specify or designate any county. But we think, for the very reason that there is no such county as that of Buter, it therefore necessarily follows that these words must refer to the county of Butler, stated in the margin. The pleader says, “in the county aforesaid.” What county in the State was before named ? None other than Butler; therefore none other could have beeen referred to. We are bound to know all the counties in the State; and if but one is named in an indictment, and it is afterwards referred to by the words, in the county aforesaid, there is not the least uncertainty in determining to what county the pleader referred. The case of the State v. Hardin, 1 Brevard, R. 47, we consider directly in point, if it were necessary to refer to any authority to sustain the proposition.

It has, however, been argued, that if the county of Lowndes, or Montgomery, had been used, in the stead of the county of Buter, then the words, “in the county aforesaid,” must have referred to the last county named in the indictment; and so it would have appeared that the offence was committed without the jurisdiction of the Circuit Court of Butler. I admit that if any county in the State besides Butler had been named in tbe indictment, and in a part of tbe indictment subsequent to tbe margin, then tbe words “in tbe county aforesaid,” might not have shown, with sufficient certainty, in what county tbe offence was committed; but as .there was no other county than Butler named in tbe indictment, none other could have been referred to.

Nor is it necessary that tbe name of tbe county should be repeated, in that part of tbe indictment where tbe pleader has inserted by mistake Buter for Butler. But in framing an indictment, after stating tbe name of tbe county in tbe margin, is sufficient to say, “tbe grand jurors on their oath presentf &c., leaving out that portion which we usually find inserted, “ of tbe State of Alabama, empannelled, sworn, and charged to inquire for tbe body of-county.” Tbe caption of an indictment is that entry of record showing when and where tbe court is held, who presided as judge, tbe venire, and who were summoned and sworn as grand jurors; and this caption is applicable to, or is a part of every indictment, and need not be again repeated in any part of tbe indictment. The State v. Murphy, 9 Porter, 487; The State v. Morgan, decided at tbe last term; and although an attempt to insert a part of tbe caption, if erroneously done, may in some cases vitiate, it can never be of benefit. But after stating in tbe margin tbe name of tbe State and tbe county, the pleader may at once proceed: “ tbe grand jurors on their oath present,” &c., and a reference to tbe caption will show when, where, and under what authority tbe presentment was made.

Let tbe judgment of conviction be affirmed.