King v. State , 137 Ala. 47 ( 1902 )

SHABPE, J.

The statutes relating to the form and contents of indictment provide, that, “When an offense may be committed by different means, or with different intents, such means or intents may be alleged in the same count in the: alternative.” — Code, § 4911. I-Ience, it is not a valid objection to the indictment in this case that, it states the means by which the alleged murder was committed differently, by alternative averments in one count. — Newell v. State, 115 Ala. 54; Wilson v. State, 84 Ala. 426; Horton v. State, 53 Ala. 488. The statute above quoted has been construed as intended to obviate the necessity of a multiplication of counts, by permitting one count to serve the purpose as accomplished In'- several at common law. — Horton v. State, supra. And it has been held that in case such alternative averments are resorted to “each alternative charge must describe the means., with the same definiteness or particularity as would have been required had the charge been made separately in. a separate count,” — - Royers v. State, 117 Ala. 192. Ordinarily, an indictment charging the commission oí a homicide by means oí a weapon must specify the weapon by name or description, but; if its character be unknown to the grand jury, an averment of that fact dispenses legitimately with other designation of the weapon. This is so by statute, where, as in this case, the character of the weapon does not enter into the essence of the offense charged. — Code, § 4900. And. such was the rule at common law.- — 2 Bish. -Crim. Pro., § 514; Hornsby v. State, 94 Ala, 55. These authorities show that the alternative averment in this indictment which is to effect that the killing was done, “with some sharp instrument to the grand jury unknown”, whether considered as if it were in a separate count, or as the same is here employed, is a sufficient averment in respect of the weapon used. The indictment was not subject to the demurrer. Except by the demurrer no objection has been here raised as to the regularity of the trial court’s proceedings, and we do not find from the record that error was committed in these proceedings. Therefore, the; judgment appealed from will be affirmed.

Affirmed.