the forms given in article seven of this chapter, is sufficient in all cases in which the forms there given are applicable; in other cases, forms may be used as near similar as the nature of the case and the rules prescribed in this chapter will permit.

When the legislature declares what form of indictment is sufficient, the courts will uphold it, though matters of substance are omitted.-Bailey's case, 99 Ala. 143; Smith's case, 63 Ala. 55; McCullough's case, 63 Ala. 75; Wilson's case, 61 Ala. 151; Weed's case, 55 Ala. 13; Watt's case, 97 Ala. 72; Lang's case, 97 Ala. 41; Walker's case, 96 Ala. 53; Thomas's case, 91 Ala. 34; Smith's case, 103 Ala. 57. The statutes have changed the common-law rule, "reducing indictments rather to a statement of legal conclusions than of facts."-Drake's case, 60 Ala. 62; Jackson's case, 91 Ala. 55. Indictment for attempt, pursuing the form prescribed for the committed act, sufficient.-Jackson's case, 91 Ala. 55. Analogous forms may be used.-Brantley's case, 91 Ala. 47,51; Allen's case, 79 Ala. 34, 37.

4895 (4367) (4815) (4142) (592). Formal defects not fatal.—An indictment must not be held insufficient, nor can the trial, judgment, or other proceedings thereon, be affected by reason of any defect or imperfection in any matter of form which does not prejudice the substantial rights of the defendant on the trial.

Indictment for larceny of “the property of A. B.,” omission of word "of” does not render indictment defective.-Abernathy's case, 78 Ala. 411.

4896 (4368) (4785) (4112) (562). Statement of offense.-The indictment must state the facts constituting the offense in ordinary and concise language, without prolixity or repetition, in such a manner as to enable a person of common understanding to know what is intended, and with that degree of certainty which will enable the court, on conviction, to pronounce the proper judgment; and in no case are the words "force and arms" or "contrary to the form of the statute" necessary.

Applies only to statutory offenses.-Goree's case, 71 Ala. 9. In commonlaw misdemeanors, made felonies by statute, not necessary to allege that the act was feloniously done.-Beasley's case, 18 Ala. 535; Butler's case, 22 Ala. 43. Where offense consists of repetition or continuation of acts, they need not be set out.--Sterne's case, 20 Ala. 43; Lawson's case, Ib. 65. Exceptions created by a proviso to an act need not be negatived.-Carson's case, 69 Ala. 235. See also Grattan's case, 71 Ala. 344; Clark's case, 19 Ala. 552. Must charge acts, not specially defined, in plain, unambiguous, not slang or technical language. Daniel's case, 61 Ala. 4. Every fact and circumstance, not necessary ingredient of offense, may be rejected as surplusage.-Stedman's case, 7 Port. 495; McGehee's case, 52 Ala. 224. Or words uselessly repeated or superadded.—Lodano's case, 25 Ala. 64; McGehee's case, supra.

4897 (4369) (4801) (4128) (578). Construction of words used. The words used in an indictment must be construed in their usual acceptation in common language, except words and phrases defined by law, which must be construed according to their legal meaning.

Bad punctuation does not vitiate an indictment.-Ward's case, 50 Ala. 120. Nor use of character "&" instead of word “and.”-Pickens's case, 58 Ala. 364. Nor use of word "was" instead of “were."-Pond's case, 55 Ala. 196. Use of figures instead of letters permissible sometimes, but a bad practice.-Raiford's case, 7 Port. 101; Diggs's case, 49 Ala. 311. The omission of the last letter of the word "gold," making it "gol," in describing money stolen, is mere misprision. Grant's case, 55 Ala. 201. Use of word "charged" instead of "charge," when not fatal.-Brazier's case, 44 Ala. 387. Use of words "maice aforethought," instead of "malice aforethought," vitiates as to intended charge.—Wood's case, 50 Ala. 144. Averment of "Buter" for "Butler," in describing the county, corrected by caption.-Reeves's case, 20 Ala. 33. The word "delivered" is not equivalent to claim of ownership.-Jenkins's case, 97 Ala. 66. Indictment charging larceny of sack full of corn, the word "full" is surplusage.-Newsum's case, 107 Ala. 133. "Physician" means same thing as "licensed physician.'

Dean's case, 100 Ala. 102. Two "bales" is synonymous with two "bags" of cotton. Peter's case, 100 Ala. 10. The word "aforethou" is not equivalent to "aforethought."-Griffith's case, 90 Ala. 583. As to spelling, see Watkins's case, 89 Ala. 82. "Female" means same thing as "woman."-Myer's case, 84 Ala. 11. Indictment charging larceny of "gold watch" is supported by proof that watch was commonly called "gold watch," though not pronounced so by jewelers. Pfister's case, 84 Ala. 432. Omission of the word "of" in an indictment is a mere clerical misprision.-Abernathy's case, 78 Ala. 411.

4898 (4370) (4792) (4119) (569). Statute words not necessary; what words sufficient.-Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning.

Indictment for offense created by statute must conform substantially to description in statute.-Bryan's case, 45 Ala. 86; Skains's case, 21 Ala. 218; Pettibone's case, 19 Ala. 586; Eubanks's case, 17 Ala. 181. Hence, Code form of indictment insufficient, if it fails to describe offense, etc.-Danner's case, 54 Ala. 127; Smith's case, 63 Ala. 55; and cases above cited in this note. Held sufficient generally to follow language of statute.-Mason's case, 42 Ala. 543; Johnson's case, 32 Ala. 583; Bush's case, 18 Ala. 415; Raiford's case, 7 Port. 101; Plunket's case, 2 Stew. 101; Lodano's case, 25 Ala. 64; Smith's case, 22 Ala. 54; Stedman's case, 7 Port. 495; Clark's case, 19 Ala. 552; Beasley's case, 18 Ala. 535; Batre's case, Ib. 119; Eubanks's case, 17 Ala. 181; Mahan's case, 2 Ala. 340; Click's case, Ib. 26; Duncan's case, 9 Port. 260; Briley's case, 8 Port. 472; Smith's case, 63 Ala. 55. If statute words are not employed, the words used must have as full signification.-Sparrenberger's case, 53 Ala. 481; Ben's case, 22 Ala. 9; Ward's case, Ib. 16; Bullock's case, 13 Ala. 413; Worrell's case, 12 Ala. 732. Charging words in addition to those in statute, thereby taking the offense out of statute, vitiates indictment.-Mahan's case, 2 Ala. 340. Insufficient to pursue words of statute which merely designates without describing offense. Anthony's case, 29 Ala. 27; Beasley's case, 18 Ala. 535; Turnipseed's case, 6 Ala. 664. See also Williams's case, 15 Ala. 259. When indictment in language of statute insufficient.-Grattan's case, 71 Ala. 344; Danner's case, 54 Ala. 127. When must conform to letter or substance of statute creating particular local offense.-Camp's case, 27 Ala. 54. Where statute prescribes different punishment for different individuals indictment must specify the class within which defendant is amenable.-Hirschfelder's case, 18 Ála. 112.

4899 (4371) (4793) (4120) (570). Offense described as at common law; punishment.-In an indictment for an offense which was indictable at common law, the offense may be charged or described as at common law, and the defendant, if convicted, must receive the punishment prescribed by the statute.

Indictment good at common law sufficient under the statute.-Sparks's case, 59 Ala. 82; Diggs's case, 49 Ala. 311. Formerly indictment under the statute merely punishing common-law offense, required to be found as at common law.-Absence's case, 4 Port. 397; Stedman's case, 7 Port. 495. Indictment for keeping disorderly house examined, and held sufficient under common law. Cahn's case, 110 Ala. 56.

4900 (4372) (4794) (4121) (571). Special and general terms in statutory definition.-When a statute creating or defining an offense uses special or particular terms, an indictment on it may use the general term which, in common language, embraces the special

term.

For act done by acts or means other than those particularized, such acts or means must be specified more particularly than by general description in statute.-Danner's case, 54 Ala. 127. They must be described in plain and proper language, not by slang or technical words.-Daniel's case, 61 Ala. 4. When indictment charging general term insufficient.-Horton's case, 53 Ala. 488; Johnson's case, 32 Ala. 583; Bush's case, 18 Ala. 415; Raiford's case, 7 Port. 101; Plunket's case, 2 Stew. 101.

4901 (4373) (4788) (4115) (565). Statement of time.-It is not necessary to state the precise time at which the offense was committed; but it may be alleged to have been committed on any day

before the finding of the indictment, or generally before the finding of the indictment, unless time is a material ingredient of the offense. Specific time need not be averred, unless a material ingredient of the offense.-Molett's case, 33 Ala. 408; Doyle's case, 49 Ala. 28. Sufficient to charge that offense was committed "before the finding of the indictment."-Thompson's case, 25 Ala. 41; Molett's case, 33 Ala. 408. And must be proved that the offense was committed before indictment found; of which a reasonable doubt authorizes acquittal.-Armistead's case, 43 Ala. 340. See McGuire's case, 37 Ala. 161. If alleged under videlicet, need not be proved as laid.-McDade's case, 20 Ala. 81. Need not allege that offense was committed after passage of a recent act alleged to be violated.-Harris's case, 60 Ala. 50. See also Adams's case, Ib. 52. As to allegation and variance in limit of time allowed in taking out license.-Henback's case, 53 Ala. 523. Time of offense as a necessary averment at common law.-Beckwith's case, 1 Stew. 318; Lassley's case, 7 Port. 526; Shelton's case, 1 Stew. & Port. 208; Roberts's case, 19 Ala. 526. Indictment for an offense, which has been changed by statute from misdemeanor to felony, must show whether offense was committed before or after the change. Bibb's case, 83 Ala. 84.

4902 (4374) (4787) (4114) (564). Statement and proof of venue. It is not necessary to allege where the offense was committed; but it must be proved, on the trial, to have been committed within the jurisdiction of the county in which the indictment is preferred.

Legislature has the power to dispense with necessity of averring venue. Noles's case, 24 Ala. 672. Averment of county in margin.-Reeves's case, 20 Ala. 33. Venue must always be proved.-Tidwell's case, 70 Ala. 33; Salomon's case, 27 Ala. 27; Brown's case, Ib. 47; Huffman's case, 28 Ala. 48; Spaight's case, 29 Ala. 32; Farrall's case, 32 Ala. 557; Green's case, 41 Ala. 419; Frank's case, 40 Ala. 9; Clark's case, 46 Ala. 309; Sparks's case, 59 Ala. 82; Cawthorn's case, 63 Ala. 157. May be proved after argument begun.-Pond's case, 55 Ala. 196. Proof of county boundaries; when a question of fact and when of law. Tidwell's case, 70 Ala. 33. Failure to prove venue, taken advantage of by general charge to acquit.-Childs's case, 55 Ala. 28; Williams's case, 54 Ala. 131; Clark's case, 46 Ála. 307. Or demurrer to evidence sustained, if no proof of venue. Martin's case, 62 Ala. 240. Such proof must appear by bill of exceptions, if purporting to set out all the evidence, on appeal.-Riddle's case, 49 Ala. 389; Walker's case, 52 Ala. 192; Williams's case, 54 Ala. 132; Sampson's case, Ib. 241; Ellsberry's case, 52 Ala. 8. Charges ignoring proof of venue erroneous.-Henry's case, 36 Ala. 268; David's case, 40 Ala. 69; Clark's case, 46 Ala. 307; Gooden's case, 55 Ala. 178; Bain's case, 61 Ala. 75. But see Cunningham's case, 73 Ala. 51. But supreme court will not interfere in the absence of instructions given or refused, and when no exception was reserved. Hubbard's case, 72 Ala. 169; Huggins's case, 41 Ala. 393; Ellsberry's case, 52 Ala. 8; West's case, 76 Ala. 98. Indictment for violating local prohibition law must show offense was committed within the prohibited territory.-Robertson's case, 100 Ala. 123. Statement of state and county in margin equivalent to an averment that the offense was committed within the body of that county. Wesley's case, 52 Ala. 182, 188; Toole's case, 89 Ala. 133.

4903 (4375) (4795) (4122) (572). Description of public place. When, to constitute the offense, an act must be done in a public place, and such public place is not more particularly defined in the statute, it is sufficient to allege that the act was done "in a public place" generally.

4904 (4376) (4786) (4113) (563). Name or description of defendant when unknown.-The indictment must be certain as to the person charged; but when his name is unknown to the grand jury, it may be so alleged without further identification.

Identity of persons presumed from identity of names, in absence of evidence that same name is borne by another in the community-Garrett's case, 76 Ala. 18. Evidence of identity.-Ib. Statute is mere affirmation of common law.-Washington's case, 68 Ala. 85. Either Christian or surname may be alleged under alias.-Lee's case, 55 Ala. 259; Haley's case, 63 Ala. 89. And may be identified by either name.--Evans's case, 62 Åla. 6. Insertion or omission of middle name immaterial.--Edmundson's case, 17 Ala. 179. See also Diggs's case, 49 Ala. 311; Rooks's case, 83 Ala. 79. And so of a mistake in the middle

name, if alleged.-Pace's case, 69 Ala. 231. Not sufficient to allege defendant's name by initials, without additional averments.--Gerrish's case, 53 Ala. 476; Winter's case, 90 Ala. 637. When not uncertain, as to whether defendants charged individually, or as private corporation.-Barnett's case, 54 Ala. 579. Mistake in spelling, if pronunciation unchanged, is immaterial variance under doctrine of idem sonans.-Page's case, 61 Ala. 17. The following held idem sonans: "Booth" and "Boothe" (Jackson's case, 74 Ala. 26); "Louis" and "Lewis" (Block's case, 66 Ala. 493); "Edmundson" and Edmindson" (Edmundson's case, 17 Ala. 179); "Burdet" and "Boudet," "Boredet" or 'Bouredet" (Aaron's case, 37 Ala. 106). The following held not idem sonans : Mincher" and "Minchen" (Adams's case, 67 Ala. 87); "Zachary" and "Zacharia" (Lawrence's case, 59 Ala. 61); "Mulette" and "Merlette" (Merlette's case, 100 Ala. 42); "Munkers" and "Muncus" (Munkers's case, 87 Ala. 94). When idem sonans a question for the jury.-Underwood's case, 72 Ala. 220; Lawrence's case, 59 Ala. 61. The Christian names of third persons, or persons only collaterally concerned, may be alleged by initials, if it appears on the trial to be the person meant.-Franklin's case, 52 Ala. 414; Gerrish's case, 53 Ala. 476; Haley's case, 63 Ala. 83; Thompson's case, 48 Ala. 165. But the policy of this statute should be extended to description of third persons with same certainty as defendants.--Morningstar's case, 52 Ala. 405. Cases showing material and immaterial variance in names or description of third persons.--Jacob's case, 61 Ala. 448; Hinds's case, 55 Ala. 145; Brown's case, 47 Ala. 47; Owen's case, 48 Ala. 328. Grand juries and solicitors in all cases should try and ascertain true names, and, if unknown, may be so alleged without further description.--Morningstar's case, 52 Ala. 405; Gerrish's case, 53 Ala. 470; Cheek's case, 38 Ala. 227. Also may allege Christian name, or surname, as unknown.-Bryant's case, 36 Ala. 270; Skinner's case, 30 Ala. 524. Yet proof that name was known by grand jury, or could have been ascertained by due diligence, authorizes acquittal as to person so alleged, but not if name known since indictment. Cheek's case, supra. But see as to unknown facts.-Duvall's case, 63 Ala. 12. Indictment must not pretend to give a name and also aver (in same count) name to be unknown.-Jones's case, 63 Ala. 27. But this rule held not to apply when no name is alleged, but initials only are averred.-Gerrish's case, 53 Ala. 470. An indictment which describes the defendant as "W. P. O'Brien, whose Christian name is to the grand jury unknown" is sufficient.-O'Brien's case, 91 Ala. 25. If indictment states only initials of Christian name and alleges it to be unknown and proof shows it was known, there can be no conviction.-Winter's case, 90 Ala. 637. Indictment against "Mat" Taylor is sufficient, without allegation "otherwise unknown," and if alleged it is surplusage. Taylor's case, 100 Ala. 68. Indictment against "Babe" Wells is sufficient also, without allegation of "otherwise unknown.'-Wells's case, 88 Ala. 239. Indictment against Robert Noblin, alias Robert Tate, is good, and plea that name was Robert Tate and that he had no alias is bad.--Noblin's case, 100 Ala. 13. "Rooks" and "Rur" are so nearly idem sonans that it will not support plea in abatement.-Rooks's case, 83 Ala. 79. There is a material variance between "Tarpley" and "Tapley."-Tarpley's case, 79 Ala. 271. There is no material variance between "Donnelly" and "Donly."-Donnelly's case, 78 Ala. 453.

4905 (4377) (4789) (4116) (566). Facts unknown to jury; so alleged. Any fact which is unknown to the grand jury, and which is not a material ingredient of the offense, may be so charged in the indictment.

Such averment is sufficient if the fact was actually unknown, even if it could have been ascertained by reasonable diligence.-Duvall's case, 63 Ala. 12. Prosecution not bound to prove fact was unknown.-Childress's case, 86 Ala. 77. An indictment which charges the murder of a man, whose name is to the grand jury unknown, is sufficient, and the allegation that the deceased "was supposed to be named C. Mehan," is surplusage.-Reese's case, 90 Ala. 624. When the indictment is sufficient without the allegation that a fact is otherwise unknown, such allegation is surplusage.-Carden's case, 89 Ala. 130. When the indictment alleges a fact or name to be unknown to the grand jury, and the evidence shows that it was known to that body, the variance is fatal. Winter's case, 90 Ala. 637;. Wells's case, 88 Ala. 239; Duvall's case, 63 Ala. 13. An indictment for the sale of mortgaged property, must allege the name of the holder of the mortgage, and cannot aver it is unknown.--Hill's case, 78 Ala. 1. An indictment against W. P. O'Brien, whose Christian name is otherwise unknown, is sufficient.-O'Brien's case, 91 Ala. 25.

4906 (4378) (4790) (4117) (567). Means unknown; so alleged. When the means by which the offense was committed are unknown

to the grand jury, and do not enter into the essence of the offense, the indictment may allege that they are unknown to the jury.

4907 (4379) (4791) (4118) (568). Legal presumptions, and matters judicially known.-Presumptions of law and matters of which judicial notice is taken, need not be stated.

Refers only to presumptions of law which forbid all dispute ; not to disputable presumptions which may be overcome by proof.-Henry's case, 33 Ala. 389. See McDaniel's case, 76 Ala. 1; Cary's case, Ib. 78. Courts take judicial notice of public officers, and their official acts.-Beggs's case, 55 Ala. 108. Charters of municipal corporations and special statutes conferring on them special powers.-Mayor v. Wetumpka Wharf Co., 63 Ala. 611; City Council v. Hughes, 65 Ala. 201. But not of the ordinances of municipal corporations.-Furham v. Mayor, 54 Ala. 263. Of a statute which, though local in its nature, extends to all persons who may come within territory described, and is therefore public statute.-Carson's case, 69 Ala. 235. But not of a private act (as turnpike charter).-Moore's case, 26 Ala. 88. Of notaries with powers of justice and other commissioned officers.-Coleman's case, 63 Ala. 93. That "lager-beer" is a "malt liquor."-Watson's case, 55 Ala. 158. Of the meaning of "malt liquor" as used in statutes.-Adler's case, 55 Ala. 16. Of the value of U. S. currency and treasury notes.--Grant's case, 55 Ala. 201; Duvall's case, 63 Ala. 12. Of journals of two houses of general assembly.-Moody's case, 48 Ala. 115. Of grand jury and terms of filing indictments.--Overton's case, 60 Ala. 74. Of the names of counties of this state.-Ib.; Reeves's case, 20 Ala. 33. Of things generally known.-S. & N. R. Co. v. Pilgreen, 62 Ala. 305. Also of "Webster's Unabridged Dictionary" as standard authority for meaning of English words.--Adler's case, 55 Ala. 16. But not of laws of sister state.-Forsythe v. Preer, 62 Ala. 443. As to other matters of which courts take judicial notice, see Sprowl v. Lawrence, 33 Ala. 674; Allman v. Owen, 31 Ala. 167; McDaniel's case, 76 Ala. 1; Cary's case, Ib. 78.

4908 (4380) (4799) (4126) (576). Averment of intent to injure or defraud.-When an intent to injure or defraud is necessary to constitute the offense, it is sufficient to allege an intent to injure or defraud generally, without naming the particular person, corporation, or government intended to be injured or defrauded.

Under general averment of intent to defraud, the state may prove the particular person intended to be defrauded.-Williams's case, 61 Ala. 33; Mack's case, 63 Ala. 138; Headley's case, 106 Ala. 109.

4909 (4381) (4800) (4127) (577). Averment of ownership of property. When any property, upon or in relation to which the offense was committed, belongs to several partners or owners, it is sufficient to allege the ownership to be in any one or more of such partners or owners.

Williams's case, 67 Ala. 183; White's case, 72 Ala. 195; Bass's case, 63 Ala. 108; Brown's case, 79 Ala. 51.

4910 (4382) (4812) (4138) (588). Description of animal in offense committed concerning same.--In an indictment for the larceny of any animal, or for any other public offense committed in reference to any animal, it is sufficient to describe the animal by such name as, in the common understanding, embraces it, without designating its sex.

See note to section 5049.

ARTICLE 2.

ALTERNATIVE AVERMENTS, AND JOINDER OF OFFENSES.

4911 (4383) (4796) (4123) (573). Statements of means or intents in alternative.--When the offense may be committed by dif