Johnson v. State

The first count of the indictment charged the defendant with manufacturing prohibited liquors, and the second count with having in his possession a still to be used for the purpose of manufacturing, etc. A nolle prosequi was entered to the second count.

Objection was taken to the indictment by demurrer on the ground that it is uncertain as to the time, term, or date it was preferred by the grand jury, in that the word "spring" is written above "April," immediately preceding "term." The special caption or heading at the commencement of the indictment may be aided by the indorsement on the back showing that the indictment was found at the spring term 1921, and that Walter Stephenson was foreman. Code 1907, § 7131; Gater v. State,141 Ala. 10, 37 So. 692.

The omission of one of the alternative averments charging, in an indictment, manufacturing prohibited liquors under section 15, Acts of Legislature 1919, p. 16, does not invalidate the indictment.

The signature of the solicitor to an indictment is proper, but not necessary to its authentication. Holley v. State,75 Ala. 14; 1 Mayfield, Digest, p. 1427, § 6, subds. 98 and 99.

The demurrer to the indictment was properly overruled.

The verdict of the jury was as follows: "We the jury find the defendant guilty. H.A. Bragg, Foman" — and was sufficient upon which to predicate the judgment of guilt and the sentence of the court. The jury conveyed to the court in unequivocal terms that their verdict was guilty and H.A. Bragg signed the verdict as foreman. The misspelling of the word "foreman" does not vitiate the verdict of the jury.

The judgment entry reads as follows:

"Thereupon came a jury of good and lawful men, to wit, Hosea A. Bragg and 11 others, who had been duly impaneled and sworn according to law well and truly the issues to try and true verdicts render upon their oaths do say, we, the jury, find the defendant guilty."

Then follows the judgment and sentence of the court. This is sufficient in every respect.

The indorsement of the clerk shows that the indictment was filed in open court on the 28th day of April, 1921, in the presence of the grand jury. This was a compliance with the law. Section 7152, Code 1907. But this objection was not taken in the trial court and cannot be raised for the first time here. Jackson v. State, 74 Ala. 26; 1 Mayfield, Dig. p. 429.

When there is no bill of exceptions purporting to set out the evidence, the appellate court will presume that the charge of the court was justified by the evidence. 1 Michie's Dig. p. 422.

The burden is upon the appellant to affirmatively show by the evidence the incorrectness of the charges asked by setting out the proof in a bill of exceptions. Where there is no bill of exceptions, and the legality of the charges depends upon the proof, nothing is presented for review. 1 Michie's Dig. p. 422.

There was no bill of exceptions. There is no error in the record. The judgment of the circuit court is affirmed.

Affirmed.