Opinion
8 Div. 697.
June 11, 1925. Rehearing Denied October 22, 1925.
Appeal from Circuit Court, Lawrence County; O. Kyle, Judge.
G. O. Chenault, of Albany, for appellant.
An indictment cannot be amended, even in an immaterial matter, without the consent of the defendant. Gregory v. State, 46 Ala. 151; Schiff v. State, 84 Ala. 454, 4 So. 419; Dix v. State, 8 Ala. App. 338, 62 So. 1007; Ex parte Bain, 121 U.S. 1, 7 S.Ct. 781, 30 L.Ed. 849. After alteration the indictment should have been quashed or stricken on motion. Sparrenberger v. State, 53 Ala. 481; Reynolds v. State, 1 Ala. App. 29, 55 So. 1016. The requirement that a true copy of the indictment be served on defendant was not complied with. Nutt v. State, 63 Ala. 180; Tidwell v. State, 70 Ala. 42. Error was committed in the refusal to allow the letter introduced in evidence by defendant to be taken out by the jury. Code 1907, § 5365; Code 1923, § 9511; Shirley v. State, 144 Ala. 35, 40 So. 269; Foster v. Smith, 104 Ala. 248, 16 So. 61. A charge must be given or refused in the terms in which it is written. Code 1907, § 5364; Orr v. State, 117 Ala. 72, 23 So. 696.
Harwell G. Davis, Atty. Gen., for the State.
Brief of counsel did not reach the Reporter.
The fact that the indictment was not signed by the solicitor before returned by the grand jury and filed in court did not invalidate the same. Teague v. State, 144 Ala. 42, 40 So. 312. Therefore, all motions or objections based upon this point were properly overruled. It seems that after the indictment was filed and without the consent of the court, the solicitor signed his name to same. It is true, indictments cannot be amended, except in open court and with the consent of the defendant, but this was in no sense an amendment. It was but the gratuitous act of the solicitor which neither added to nor detracted from the validity of the indictment as returned by the grand jury.
It is also urged that the case should be reversed, because a true copy of the indictment was not served upon the defendant, that the copy served contained the signature of the solicitor when the same was not a part of the indictment. As above noted, this did not affect the validity of the indictment one way or another and the defendant could not have thereby been injured. Rule 45.
It was within the discretion of the court as to not permitting the jury to take out the letter from the deceased to the defendant. 6 Mayfield's Digest, p. 516, and cases there cited. We cannot say that this discretion was abused because the court permitted the jury to take out the pistol. True, the court could have well let the defendant's documentary evidence be taken out after letting the jury have the pistol and would doubtless have done so had defendant made the request after the trial court decided to let the jury have the pistol and which was after the jury retired. The defendant did request that the letter be taken out, but this was before the pistol was sent out, and the defendant should have later requested that the letter be sent out also, instead of objecting to the action of the court in permitting the pistol to go to the jury.
The trial court, at the request of the defendant, gave charges on page 84 of the record which relate to a "probability of innocence" and after giving said charges attempted to explain same. Whether the explanation as to the meaning of same was or was not correct matters not as the defendant was not entitled to same and which could have well been refused. Edwards v. State, 205 Ala. 160, 87 So. 179.
There was no error in refusing defendant's requested charge 25. If not otherwise bad, it would tend to mislead the jury to disregard the interest of the defendant in weighing and considering his evidence.
The appellant insists that he was entitled to the general charge because the indictment charges him with killing "Julia Sadie Blaxton," and the evidence referred to the deceased as "Sadie Blaxton." It is sufficient to say that this does not show that she was not named Julia also, and which fact may have been shown had the objection or point been brought to notice before the argument was made, and the defendant cannot raise it for the first time by the general affirmative charge. Circuit Court rule 35.
While we have treated only the questions discussed in brief of appellant's counsel, we have not been unmindful of the statutory requirement to search the record for error, which has been done, and we fail to find where the trial court has committed reversible error.
The judgment of the Circuit Court is affirmed.
Affirmed.
SOMERVILLE, THOMAS, and BOULDIN, JJ., concur.