Overton v. State

MANNING, J.

Objection was made in this cause to the statement of the county, in the margin, or at the head of the indictment. The names therein of the State and county are printed in German characters ; and the German letters M and W are so much alike, that one may be easily mistaken for the other. It therefore happens, that what was intended to be, and looks to an American like the name Madison, is in fact “ Wadison/’ which proves that it would be better, in getting up all such documents, that the characters of our own language only should be employed.

If there were a county named Wadison in this State, we might, perhaps, be bound to consider it the county intended in the present indictment. But we judicially know that there is not. Is the indictment, therefore, void ?

“The caption of an indictment is that entry of record, showing when and where the court is held, who presided as judge, the venire, and who were summoned and sworn as grand jurors; and this caption is applicable to, or is a part of every indictment, and need not be again repeated in any part of the indictment.” — Reeves v. The State, 20 Ala. 33 ; Morgan v. The State, 19 Ala. 558 ; State v. Murphy, 9 Porter, 487 ; Perkins v. The State, 50 Ala. 154 . At least, this part of the record, though not such a portion of the indictment as that it must be included in the copy thereof which is required by law to be served on a prisoner about to be tried, is so connected with, and so appertains to it, that it may properly be referred to as showing in what court, at what term, by what grand jury, and in what county, the presentment was made. But, even this reference is not necessary, when the trial takes place in the court, and at the term, when and where the indictment was found. For, the grand jury is, quoad hoc, a part of the court, and its constitution, presentments, and findings are entered and preserved in the records of the court, as portions of its own proceedings, of which it conse *76 quently has a knowledge of its own. It is only when a cause is transferred to another court, that a transcript of those preliminary proceedings, constituting the caption of the indictment, need to be made and certified. — Kirk v. The State, 6 Mo. 471 ; People v. Jewett, 3 Wend. 322 ; Duncan v. The State, 1 Scam. 457 .

The grand jury that found this indictment having therefore been a part of the Circuit Court of Madison county, sworn into office before it, and its foreman appointed by the judge thereof, and having come into it in a body and presented this indictment, indorsed and signed by their foreman, “a true bill;” and this bill having been received as such from them, by the judge and clerk, the court cannot but know, from its own cognizance of the facts, that the word written or printed “Wadison,” should be read Madison. The defendant, too, being summoned, or arrested and brought into the Circuit Court of Madison county, to answer there to an indictment against him, when it is shown to, or a copy of it is served upon him, is necessarily advised that it is to a presentment of a grand jury of that court and county that he is required to answer; since it could not, under our constitution, be sent from the court of another county into that, except with his consent.

Section 4784 (4111) of the Code of 1876 enacts, that “an indictment must contain, in the caption or body thereof, the name of the State, county and term, in and at which it is preferred.” And a brief form is given on page 991, of such a caption; which ought always to be used. But this does not hinder the more solemn setting forth of those same things, as in this instance they are set forth, in the record of the proceedings which, as we have seen, constitutes the more formal caption to the indictment, from being a sufficient compliance with the provisions quoted from section 4784. We hold that the indictment in this cause is sufficient, and should not be. quashed.

There is no final judgment, though, in this cause, from which an appeal could be taken; and the appeal itself must be dismissed.