McCullough v. State , 63 Ala. 75 ( 1879 )

BRICKELL, C. J.

1. The indictment is certainly insufficient at common law; and would be insufficient under the statute (Code of 1876, § 4785), which requires that the facts constituting the offense shall be stated in ordinary and concise language, if it were not authorized expressly in its present form by the subsequent section of the Code — § 4810. Noles v. The State, 24 Ala. 672. There is great force in the argument of the counsel of appellant, against the constitutionality of statutes which authorize such vague and indefinite criminal accusations, not affording the accused reasonable information of the nature and cause of the accusation against him ; but we are not at liberty to regard the question as open for discussion and decision. Eor more than twenty-six years, after repeated argument and deliberation, in respect to all crimes, from the highest to the lowest in degree, indictments, founded on and sanctioned by such statutes, have been supported by this court, whenever their sufficiency was assailed; and we must be content to abide the results. It is the province of the legislature to interfere, and not of the courts, to disturb that which has been settled so long, and after so much of argument and deliberation.

2. The indictment includes the neglect or failure of the defendant to perform any or all of the duties which are imposed upon him by law, for which he is not otherwise made answerable. — Code of 1876, § 4252. It is not limited and confined to any single omission or neglect of duty, as would be an indictment for a single act. The guilt of the accused may consist in a single omission, or a series of omissions of duty ; and the judgment, whether of conviction or acquittal, will operate aá a bar to any future prosecution, without regard to the omissions of which evidence may be given on the trial. It is not for a single violation or omission of duty, unless that is specifically averred, it can be intended the grand jury have found the bill; but for any and all omissions of duty, which are indictable, and of which evidence may be given. When an indictment includes but one offense, and is incapable of proof of more than one, all similar offenses being of themselves indictable, the proof must be confined to one. When the general forms of the Code, in relation to such offenses, are followed, if the State proceeds far enough in the evidence to individualize any particular act or transaction as the offense, an election is made to proceed for that act or transaction; and there can not be, against the objection of the defendant, any waiver or abandonment of it, and resort to others for the purpose of conviction. — Elam v. The State, 26 Ala. 48; Hughes v. The State, 35 Ala. 351; Peacher v. The State, 61 Ala. 22. The judgment, in such case, will operate as a bar only to the act of which evidence is given ; and it is to that act the indictment refers, or is presumed to refer. But the present indictment is not presumed to refer to any single neglect of duty, of which the defendant may have been guilty, or which may be imputed to him, but to any and every neglect of duty which can be imputed to him during the period covered by it — the twelve months before its finding; and judgment upon it will operate a bar to any other indictment for any of such neglects, whether evidence of them be or not given on the trial. There was, consequently, no error in permitting the State to prove, or to give evidence in reference to, the failure to keep the bridge in repair, and also of the failure to work and keep in repair the road in the precinct of which the defendant was overseer. Each was included in the indictment.

3. The instructions given and refused by the court are not erroneous, in view of the evidence. It seems to have been an undisputed fact, that, for more than ten days, the road in the precinct of the defendant wTas in bad condition, or, in the words of the statute, out of repair. It had not been worked for ten days,’ with the hands apportioned to the defendant; and no excuse for the failure was offered or shown. Tbe degree of the improvement which could have been made, if the duty had been performed, may not have been very great, or very durable. It was a public duty, resting on the defendant, to have made such improvement as he could, with the force and means of which the law gave him command; and a neglect of the duty subjected him to indictment. Nor was the neglect excused, because no person or property was injured, or hindered, in passing the road; nor because, on account of the character of the soil, any repairs made would not have been permanent. The statute pronounces that proof appellant was overseer, the road public, and the defaults, is sufficient for a conviction. — Code of 1876, § 4901.

¥e find no error in the record, and the judgment is affirmed.