Dillard v. State , 137 Ala. 106 ( 1902 )

TYSON, J.

It appears by the record that the defendant was proceeded against upon an affidavit made before one Jernigan, a justice of the peace, charging him with the offense of using obscene or insulting language in the presence of females (§ 4306 of Code), upon which a warrant was issued returnable to the county court. In answer to this prosecution he appeared and interposed a plea of misnomer which, upon a hearing of the evidence, was sustained by the court. Thereupon another affidavit was made before the clerk of the circuit court charging him, by his correct name, with the same offense, to which he interposed his plea of not guilty. This affidavit is designated by the judgment entry as, an amendment of the first to which an objection was made. Defendant also made a motion to strike it because it was an amendment of the first. Whether it was an amendment of the first or the institution of a new prosecution- is unnecessary to decide, since in either aspect, no error was committed of which the defendant can complain. The prosecution undoubtedly had the right to amend the first by a re-verification to meet the p'lea in abatement interposed by defendant. In other words, to amend the affidavit upon, ai re-verification so as to charge the defendant by his correct name, with the offense-.- — -1 Bish. New Grim. Proc., §§ 714, 715. But if it be said that the amendment should have been made before a determination of the plea of misnomer on its merits and that a, decision- on its merits- in defendant’s favor operated as a- termination of the prosecution, the answer is that it was entirely competent to institute another prosecution upon the making of the affidavit upon which the trial ivas had. The clerk of the circuit court before Avhom it was made, is, by the terms of the act creating the court that tired the casi1, ex officio clerk of that court and express authority is conferred upon him to take the affidavit and to issue a warrant of arrest upon it returnable to that court. — Acts, 1900-1901, p. 864. It is true the record contains no warrant issued by the clerk, if one was issued, but Ave apprehend that this- is of no consequence since the defendant appeared and pleaded to the: affidavit. While the language employed in the affidavit is someAvhat confusing and informal, it charges every essential element of the-offense and is'not fatally defective.

The judgment of conviction must be affirmed.