McClerkin v. State

HARALSON, J. 1. There was a demurrer of six grounds filed to the indictment, in which there was no merit, as was made to appear in the case of Smith v. The State, 103 Ala. 57. Smith was indicted and tried in said court, on a similar indictment to the one in this case.- The 2d plea of defendant, to which the court sustained properly a demurrer, was nothing more than an attempt to raise by plea one of the grounds of the demurrer held to be bad. 2. There was no error in admitting the acts of the legislature of Virginia incorporating the Richmond & Danville Railroad Company. It was averred in the in-indictment, that this company was a corporation, and [112] these acts, introduced to prove the fact, bore authentication as required by act of Congress (27th March, 1804) for their admission as evidence in the courts of this State. — Code 1876, p. 49. 3. The defendant requested six charges which were refused ; and three separate parts of the court’s general charge were excepted to. Those portions of the general charge numbered 1 and 3 seem tobe proper instructions to a jury in a crimina] case, and that part numbered 2 will be passed on later. Those requested by defendant and refused, except the first, were in substance and effect passed on by us in the case of Smith v. The State, 103 Ala. 57, supra. The one numbered 1 we proceed to notice. 4. It seems, that in an indictment for perjury, while it is entirely proper, following the form in the Code for perjury in a civil case, to aver the particular officer before whom the oath was taken, it is not necessary to do so for the legal sufficiency of the indictment. Indeed, in form 66, for perjury on trial of a criminal case, the averment in this respect is, that defendant was “duly sworn to testify,” &c. This is all that is necessary to aver in any case. But that the oath was duly administered in some form, is an essential averment; and the rule is, that where a person or thing necessary to be mentioned in an indictment, is described with even unnecessary particularity, all the circumstances of the description must be proved, for they are made essential to the identity. The books abound with illustrations of variances in the allegations and proof in this respect — as for instance, on an indictment for stealing a horse of a particular color, the color is made descriptive of the particular animal stolen; or, in an indictment for stealing a bank-note, if the name of the officer who signed it be also stated, though unnecessary to have been done, it must be proved; or, nearer still to our case, if one is charged with perjury and it is alleged that the oath was administered on the Gospels, and the proof showed he was sworn otherwise — in all these and other similar instances, the particular descriptive allegations were held necessary to be proved, and variances in proof were declared fatal. In a recent case we held, that in a trial for perjury, where the indictment charged that the defendant falsely made ah affidavit for a new trial in a civil [113] action by one G. against him, an affidavit for a new trial in the case of G. et als. against him, should not be admitted in evidence against defendant, on the ground of variance.—Walker v. The State, 96 Ala. 53; Clark’s Manual, § 1240; 1 Greenl. Ev., §§ 63-65; 18 Am. & Eng. Encyc. of Law, 302, n. In the case before us, the averment is, that the defendant ‘ ‘being duly sworn by the clerk of said county, who had authority to administer such oath, falsely,” &c. We have in this State no such officer as clerk of the county, but have a clerk of the county, circuit and city courts, and may have one of the probate court, if the judge appoints one. To which of these officers, if to either, the the averment relates, ismot definitely or certainly stated. There was evidence tending to show, that the oath was administered by the clerk of the city court of Anniston. We must hold there was a fatal variance between the allegation and proof as to this matter, and for this reason that said charge number 1 should have been given. For the same reasons, and because misleading as applicable to this case, instruction numbered 2 in the court’s general charge, to which an exception was saved, should not have been given. There were other questions raised in the case'on which it is unnecessary to pass. What has been said will tend to free the cause from difficulty on another trial, if defendant shall be held to answer under sections 4389, 4390 of the Code. Reversed and remanded.