Benson v. State , 68 Ala. 544 ( 1881 )

SOMERVILLE, J.

The indictment in this case charges the defendant with making use of abusive, insulting, or vulgar language, in or near the dwelling of one James Hill, in the presence of a member of the family, contrary to the provisions of section 4208 of the Code. No question arises on the form of the indictment, and the words alleged to have been used are duly set out.

The rule is, when certain language or words are averred in an indictment to have been spoken or used, it is sufficient if there is a substantial accordance between the allegation and the proof. If the words are substantially proved as. laid, this is all that the law exacts, provided there is no variance in the sense.—Wharton’s Cr. Ev. § 120 a; Haley v. The State, 68 Ala. 89; 1 Whart. Cr. Law, § 351. The court properly refused to charge the jury, that the exact words charged in the indictment as having been used, should be proved on the part of the State.

If the evidence had shown that the indictment was indorsed “A true bill,” in the name of the foreman of the grand jury, and without his authority, it is clear that it could have been quashed on motion. But, as the name was signed in the presence of, and by the direction of the foreman, the clerk of the grand jury acting as his amanuensis in the matter, the signature was, in law., the act of the foreman himself. Qui facit per odium, fadi per se. The indictment was not, therefore, invalidated by this irregularity; but such a practice i» reprehensible, and not to be indulged, because liable to lead to unnecessary complications.

The judgment of the Circuit Court is, affirmed.