Indictment Lost or Destroyed, Substituted.

the court rightly allowed the case to be taken from the jury and a new indictment preferred, is immaterial on the trial of the second indictment.Brewer v. State, 59 Ala. 101. Joinder of different counts to meet any phase of the evidence; right to demand election.-Cunningham v. State, 117 Ala. 59 (23 So. 693). Indictments found by special grand juries.-Lide v. State, 133 Ala. 43 (31 So. 953). Nolle prosequi entered before defendant put in jeopardy not bar to further prosecution.-O'Brien v. State, 91 Ala. 25 (8 So. 560). Where solicitor dismisses prosecution and a proper order is not made, preferring another indictment.-Johnson v. State, 134 Ala. 54 (32 So. 724); McClellan v. State, 121 Ala. 18 (25 So. 725). Motions to quash indictment or pleas in abatement thereto should be made before the general issue.-Johnson v. State, 134 Ala. 54 (32 So. 724). Nolle prosequi puts end to particular indietment; a second indictment, save as affected by the statute of limitations, is the beginning of a new prosecution.-Bazell v. State, 89 Ala. 14 (8 So. 22). Unsafe practice and reversible error to permit amendment without consent of accused. Gregory's case, 46 Ala. 151; Johnson's case, Ib. 212. Allowed by consent of accused.-Ross's case, 55 Ala. 177. On variance between allega tions and proof, nol. pros. may be had, and accused tried under new indietment; also where indictment fatally defective; accused not in jeopardy.Martha's case, 26 Ala. 72; White's case, 49 Ala. 344; Western's case, 63 Ala. 155. Statute not unconstitutional.-Kreps's case, 8 Ala. 951. Suspends running of statute of limitation; what judgment-entry must show to suspend limitation; when defendant entitled to acquittal.-Coleman's case, 71 Ala. 312. When error to enter nol. pros. as to one of two defendants.-McGehee's case, 58 Ala. 360.

SECTION.

ARTICLE 5.

INDICTMENT LOST OR DESTROYED, SUBSTITUTED. 7157, 7158.

SECTION.

7157. Indictment lost or destroyed, 7158. If recorded, a certified copy another preferred. of record produced.

7157. (4919) (4391) (4818) (4145) (595) Indictment lost or destroyed, another preferred.-When an indictment is lost, mislaid, or destroyed, the court may, on satisfactory proof thereof, order another indictment to be preferred at the term at which such proof is made, or at a subsequent term; in which case an entry of record must be made to the effect following:

"The State

V.
A. B.

}

In this case, it appearing to the court that an an indictment was preferred against the defendant at the term, 19 (stating the time), and that said indictment is lost, mislaid, or destroyed; it is, therefore, ordered that a new indictment be preferred against the defendant for the same offense."

At common law, if indictment was lost or destroyed, it could not be substituted.-Ganaway's case, 22 Ala. 772. Inherent power in court to substitute indictment lost during trial.-Bradford's case, 54 Ala. 230.

7158. (4920) (4392) If recorded, a certified copy of record produced. When it is shown to the court that an original indictment, recorded as required by law, has been lost, destroyed, or so mutilated as to be illegible, the court shall direct

Indictment Quashed, or Judgment Arrested, and New Indictment.

the clerk to make and certify a copy thereof from such record, upon which the defendant may be arraigned and tried as upon the original indictment.

(Jan. 23, 1885, p. 98, § 2.)

ARTICLE 6.

INDICTMENT QUASHED, OR JUDGMENT ARRESTED, AND NEW INDICTMENT.

7159,

7159. Not quashed, etc., without 7160. If quashed or judgment arrested, another indictment preferred.

leave of court.

7159. (4921) (4393) (4823) (4150) (599) Not quashed, etc., without leave of court.-An indictment must not be quashed, dismissed, discontinued, or abandoned without the permission of the court; and such permission must be entered of record.

When nolle prosequi entered as to an acquitted defendant, after verdict and reversal by supreme court of one convicted, to cure objection of a misjoinder of two defendants.-Cox's case, 76 Ala. 68, citing Berry's case, 65 Ala. 117. Permission to nol. pros. not final judgment from which writ of error will lie.-Willingham's case, 14 Ala. 539. Court may allow a nol. pros. where demurrer interposed, without passing on demurrer.-Lacey's case, 58 Ala. 385; Wooster's case, Ib. 217. Also to one of several counts after close of evidence, which is acquittal as to such count.-Barnett's case, 54 Ala. 579. But see Grogan's case, 44 Ala. 9. Operates an acquittal after jeopardy begins. -Grogan's case, 44 Ala. 9. No bar to subsequent indictment.-Martha's case, 26 Ala. 72. Nol. pros. as to one count, before jeopardy, merely destroys, but does not acquit of that count.-Walker's case, 61 Ala. 30. Nol. pros. as to one count, in absence of some of the defendants, destroys such count as to them, as well as to those present.-Ib. When error to enter nol. pros. as to one of two defendants.-McGehee's case, 58 Ala. 360. Indictment found at unauthorized special term should be quashed.-Davis's case, 46 Ala. 80. Motion to quash or strike from files, and other objections to indictment as a court record, eome before pleading on merits.-Jackson's case, 74 Ala. 26. Court not bound to quash defective indictment on motion, but may put defendant to demurrer.-Jones's case, 5 Ala. 666; Boulo's case, 49 Ala. 22. Motion to quash

in sound discretion of court; what not an exception.-White's case, 74 Ala. 31. Must be made first in court below, not on appeal.-Jackson's case, 74 Ala. 26. Held, that if one count quashed on motion, all vitiated.-Rose's case, Minor, 28. But not so on demurrer.-Turner's case, 40 Ala. 21. Improper, in support of motion, to show that twelve of first grand jury did not concur in the finding. Spigener's case, 62 Ala. 383.

7160. (4922) (4394) (4819) (4146) (596) If quashed or judgment arrested, another indictment preferred.-When the judgment is arrested, or the indictment quashed, on account of any defects therein, or because it was not found by a grand jury regularly organized, or because it charged no offense, or for any other cause, the court may order another indictment to be preferred for the offense charged, or intended to be

Indictment Quashed, or Judgment Arrested, and New Indictment.

charged; and in such case an entry of record must be made setting forth the facts.

Where a demurrer to one of two counts is sustained, court may quash the indictment and hold the defendant to answer another indictment.-Rogers v. State, 126 Ala. 40 (28 So. 619). Personal presence of defendant in court on return of verdict; unauthorized discharge of jury.—Cook v. State, 60 Ala. 39. Order from benen binding over defendant is a mittumus to the jailer.— State v. McFarland, 121 Ala. 45 (25 So. 625). Sentence only suspended by order of the court for such purpose; defendant should be committed to proper custody.-White v. State, 134 Ala. 197 (32 So. 320). Form and sufficiency of judgment entry when new indictment ordered because of variance.-Coleman' v. State, 71 Ala. 312. Indictment found by illegal grand jury, verdict of acquittal under; plea in bar of second prosecution.-Berry v. State, 65 Ala. 117. Verdict failing to ascertain degree of crime; setting aside such verdiet and granting new trial.-Kendall v. State, 65 Ala. 492. Trial under indictment found by illegal grand jury, no jeopardy arises on trial.-Finley v. State, 61 Ala. 201. Verdict of guilty on one count only acquittal under all other counts.-May v. State, 55 Ala. 164. Defendant not in jeopardy where he refused to consent to amendment of defective indictment and nol. pros. was entered by court under the statute.-White v. State, 49 Ala. 344. Judgment or indictment rendered at time or place not authorized by law void.-White v. State, 142 Ala. 42 (39 So. 82); Skinner v. State, 142 Ala. 46 (38 So. 242). See Carson's case, 108 Ala. 38 (19 So. 32). If record shows reversible irregu larity in organization of grand jury, indictment should be quashed, and case ordered before another grand jury.-Weston's case, 63 Ala. 155. Sufficiency of a new indictment must be tested as if it were found at time former was found.-McIntyre's case, 55 Ala. 167. Court has inherent power without the statute to hold accused to answer new indictment, without hearing testimony to show guilt.-Ex parte Graves, 61 Ala. 381. Indictment quashed on demurrer while grand jury in session, no error to hold prisoner until they find new indictment.-Crumpton's case, 43 Ala. 31. The better and more usual practice is, to defer the nol. pros., or quashing of the defective indictment, until the second indictment is found.-Perkins's case, 66 Ala. 457. Suspends statute of limitations.-Smith's case, 79 Ala. 21. See note to § 7351. Motion in arrest of judgment must be disposed of before sentence.-Hood's case, 44 Ala. 81. Can only be predicated on matter of record, without aid of bill of exceptions. Sparks's case, 59 Ala. 82; Morgan's case, 48 Ala. 65; Brown's case, 52 Ala. 345; Blount's case, 49 Ala. 381. Any objection sustaining a demurrer will sustain such motion.-Francois's case, 20 Ala. 83; Nicholson's case, 18 Ala. 529; Beasley's case, Ib. 535; Martin's case, 28 Ala. 71; s. c., 29 Ala. 30; Beckwith's case, 1 Stew. 318. Will be sustained when jury fail to ascertain degree of murder.-Johnson's case, 17 Ala. 618. Also, if trial had on pleas of not guilty and former acquittal at same time in felony.-Faulk's case, 52 Ala. 416. Also ir indictment found by grand jury organized by court without authority.-O'Byrne's case, 51 Ala. 25. Separation or misconduct of jury no ground for this motion, but may be for a new trial.-Williams's case, 48 Ala. 85; Morgan's case, Ib. 65; Crocker's case, 47 Ala. 53; Franklin's case, 29 Ala. 14; Brister's case, 26 Ala. 107. Also when verdict against evi dence or charge of court.-Blount's case, 49 Ala. 381. This motion not available on the ground that a juror had been a member of the indicting grand jury. Battle's case, 54 Ala. 93. Nor that a Christian name of a third person was alleged by initials only.-Lyon's case, 61 Ala. 224. Nor because record fails to show whether conviction was for act committed before or after passage of statute making felony out of what had been misdemeanor.-McDowell's case, 61 Ala. 172. An objection to an indictment that the record did not show the appointment of a foreman must be by motion to quash, or to strike from the file, before plea to issue.-Dotson's case, 88 Ala. 211 (7 So. 259). The pendency of another indictment in same court for same offense is no cause to quash, to strike from file, or plea in abatement, but a conviction or acquittal under one is a bar to the other.-White's case, 85 Ala. 74 (5 So. 674). Quashing one indictment and preferring another, when proper.-Davis v. State, 145 Ala. 69 (40 So. 663).

Forms of Indictment.

ARTICLE 7.

FORMS OF INDICTMENT. 7161.

7161. (4923) (4899) (4824) (4141) (591) Following forms sufficient. The following forms of indictment, in all cases in which they are applicable, are sufficient; and analogous forms may be used in other cases.

1. (1) Caption, commencement, and conclusion. Sec. 7131 (4893).

The State of Alabama, }

Circuit court,

term, 190-.

The grand jury of said county charge that, before the finding of this indictment, etc. (describing the offense as in the following forms), against the peace and dignity of the State of Alabama.

2. (2) Abandonment of family under vagrant act. Sec. 7843 (5628).

A. B., having a family in said county, and being able to contribute to their support by his means (or, being an ablebodied person, by his industry), did abandon and leave them without sufficient means of subsistence or in danger of becoming a burden to the public, against, etc.

3. (3) Abusive, obscene, or insulting language. Sec. 6217 (4306).

A. B. did enter into or go sufficiently near to the dwellinghouse of C. D., and, in the presence or within the hearing of the family, or a member of the family of the occupants thereof (or A. B., in the presence or hearing of a woman), made use of abusive, insulting, or obscene language, etc.

See Jackson v. State, 137 Ala. 80 (34 So. 611). Words "female" and "woman" are identical in meaning.-Jackson v. State, 137 Ala. 80 (34 So. 611).

4. (4) Affray. Sec. 6222 (4311).

A. B. and C. D. did fight together in a public place.

What not variance.-Thompson v. State, 70 Ala. 26.

5. (5) Altering marks, brands, etc. Sec. 6241 (4749), sec. 7148 (4910).

A. B., with intent to defraud, marked or branded an unmarked horse, the property of C. D.

Forms of Indictment.

6. Animals, cruelty to. Sec. 6232 (5093).

A. B. did override (overdrive, overload, drive when overloaded, torture, torment, deprive of necessary sustenance, mutilate, or cruelly kill, or cause or procure the same, as the case may be), a horse (or other domestic animal, naming it).

7. Animals, wanton or unlawful killing of. Sec. 6230 (5091).

A. B. did unlawfully, or wantonly, or maliciously kill (disable, disfigure, destroy, or injure) a horse (or other property mentioned in the statute), the property of C. D.

8. (6) Arson in the first degree. Sec. 6295 (4336).

A. B. willfully set fire to or burned a dwelling-house of C. D., in which there was at the time a human being.

9. (7) Arson in the second degree. Sec. 6296 (4337). A. B. willfully set fire to or burned an uninhabited dwellinghouse of C. D., in which there was at the time no human being. Smoke's case, 87 Ala. 143 (6 So. 376); Sands's case, 80 Ala. 201.

10. (8) Arson in the third degree. Sec. 6299 (4340).

A. B., under such circumstances as did not constitute arson in the first or second degree, did willfully set fire to or burn a building (or, as the alternative may be).

May's case, 85 Ala. 14 (5 So. 14); James's case, 104 Ala. 20 (16 So. 94); Leonard's case, 96 Ala. 108 (11 So. 307).

11. (9) Assault and battery. Sec. 6306 (4343).

A. B. assaulted and beat C. D.

Defendant convicted of assault with a weapon.-Smith v. State, 123 Ala. 64 (26 So. 641); Murdock's case, 65 Ala. 520; Bonner's case, 97 Ala. 47 (12 So. 408).

12. (10) Assault with cowhide, etc., having pistol to intimidate. Sec. 6307 (4344).

A. B. did assault and beat C. D. with a cowhide, stick, or whip, having in his possession at the time a pistol (or a bowie knife, or other deadly weapon), with the intent to intimidate the said C. D., and prevent him from defending himself.

13. (11) Assault by lynching. Sec. 7388 (5088).

A. B. and C. D. did abuse, whip, or beat E. F., upon an accusation that he had been guilty of stealing (or to force the said E. F. to disclose where he was on the night of the twenty-first of August, one thousand eight hundred and sixtyfive or to leave the country, etc., as the case may be).