Opinion
8 Div. 527.
June 9, 1923.
Appeal from Circuit Court, Lawrence County; Osceola Kyle, Judge.
Callahan Harris, of Decatur, for appellant.
In order for an indictment to be legal it is necessary that it be indorsed, filed, and dated by the clerk. McMullen v. State, 17 Ala. App. 504, 86 So. 175; Fogg v. State, 197 Ala. 278, 72 So. 522; Wilson v. State, 128 Ala. 17, 29 So. 569; Smiley v. State, 11 Ala. App. 67, 65 So. 916. The indictment charging the defendant with manufacturing and selling whisky was prejudicial to defendant on this trial, and was erroneously admitted in evidence. Gassenheimer v. State, 52 Ala. 320.
Harwell G. Davis, Atty. Gen., for the State.
No brief reached the Reporter.
The appellant was convicted of the murder of one Tyler, and sentenced to imprisonment for life. The motion to quash the venire — because the copy of the indictment served upon defendant bore an indorsement date, over the clerk's signature, August 25, 1922, whereas on the indictment on which he was tried such date was in fact August 25, 1921 — was properly overruled in accordance with the statute. Acts Sp. Sess. 1909, p. 317, § 29. Furthermore, it is quite manifest that the error in the year (1922 for 1921) was purely clerical.
There was evidence for the state designed to show that defendant entertained hostile feeling towards Tyler because Tyler was a witness against him in a then pending cause wherein defendant had been indicted for violating the prohibition laws; and that defendant made a declaration of a threatening character towards Tyler in connection with such pending prosecution. In this connection that indictment was properly received in evidence; so for its service of completing the evidence of the theory indicated.
The court gave, at defendant's request, this instruction:
"If there is a probability of the defendant's innocence arising from the evidence, or a want of evidence, you should acquit him."
The court then gave this explanation:
"I will explain that charge, gentlemen, by saying, that it means this: If there is more evidence of the defendant's innocence arising from the evidence than there is of his guilt, then he should be acquitted; or, if there is more evidence of his innocence arising from a want of evidence in the case, then he should be acquitted."
"Whereupon the defendant then and there in open court, before the jury retired, duly reserved an exception to the court's explanation of said charge."
There was no fault, or even possible prejudice, in the court's explanation. It took nothing from the effect of the instruction to which the explanation referred.
Defendant's requests for instructions numbered 8 and 9 were well refused. Both of them singled out, respectively, a feature only of the evidence, which, if permitted, would have unduly emphasized such feature of the evidence.
The oral charge of the court was complete and errorless. The several special charges given for defendant sufficiently and efficiently advised the jury on the points to which they relate.
The judgment is affirmed.
Affirmed.
ANDERSON, C. J., and SOMERVILLE and THOMAS, JJ., concur.