The indictment in this case pursues the form prescribed by section 3080 of the Code, and reads as follows :
u The State oe Alabama, Dallas County.
The grand jury of said Dallas County charge, that on the fourteenth day of February, 1853, Joseph Noles, unlawfully, and with malice aforethought, killed George T. Sharp, by shooting him with a gun, against the peace and dignity of the State of Alabama.
(Signed) J. A. Stallworth,
Solicitor for the Second Judicial Circuit of Ala.”
Many objections are made to it, which we shall notice in the order i n which they are presented by the prisoner’s counsel.
1. As to the several objections, that tho indictment does not distinguish between murder in the first and second degrees, as defined by the Code, and does not, according to the rules of the common law, sufficiently set forth the facts and circumstances of the alleged homicide to make it good as an indictment for murder in the first degree, we need only say, that the form pursued being that prescribed by the Code, the objections cannot be valid, if the Legislature had power to enact that the form should be a good indictment. The Code must be *689regarded as a system or body of laws, and must be so construéd that its provisions may harmonize with each other, unless they are clearly repugnant. There is no repugnance here. Form No. 2, on page 698, is prescribed as the indictment for the offence defined by section 3502, and the jury are to determine whether the proof makes the offence murder in the first or second degree, as they determined, at the common law, whether the offence was murder or manslaughter. As the greater includes the less offence, there is certainly nothing anomalous in finding a prisoner guilty of the less, upon an indictment for the greater. The objection that the party is not advised as to the number of peremptory challenges to which hé is entitled, cannot properly be urged, for the reason that, in every case where he may be convicted of the higher offence, he is entitled to the number of challenges allowed in prosecutions for that offence—Ex parte McCrary, 22 Ala. 65.
If the form of tho indictment specially pointed out by the Code to be pursued in prosecutions of this kind, did not, in every particular, correspond with the general law defining the nature, and pointing out the requisites generally, of indictments, the well established rule of construction, which requires that even as to pensl statutes we should carry out the obvious intent of the Legislature, to be gathered from the words of the law (Smith’s Com. on St. pp. 884 to 818), would require us to exempt the particular form without the influence of the general statute, as a legislative exception; otherwise the provisions would be suicidal. But we are satisfied that no such repugnance exists in the case before us ; on the contrary, the form pursued is in harmony with the other provisions of the Code.
We come now to consider the sufficiency of the indictment with reference to the Federal and State constitutions. Had the Legislature the power to make this a valid indictment, and to require the jury to find by their verdict whether the offence was murder in the first or second degree; and within certain prescribed limits, to exercise a discretion as to the penalty to be inflicted on conviction 1
It is insisted by counsel, that the fifth article of the amendments to the constitution of the United States, which provides that “ no person shall be held to answer for a capital or otherwise infamous crime, unless on presentment or indictment of a *690grand jury,” &c., is an inhibition upon the States, restricting them in the prosecution of capital or infamcus offences to the common law indictment; and that, inasmuch as the indictment before us is manifestly defective as a common law indictment, it cannot be supported, and the statute prescribing it is unconstitutional and void. It is further contended, that it is violative of the tenth and twelfth sections of the bill of rights of this State ; the first declaring, that “ in all criminal prosecutions; the accused has a right to be heard by himself and counsel, to demand the nature and cause of the accusation, and have a copy thereof,” See.; and further, that “ in all criminal prosecutions, by indictment or information, a speedy public trial by an impartial jury of the county or district in which the offence shall have been committed,” &c.; and the twelfth section providing, that “ no person shall, for any indictable offence, be proceeded against criminally by information.”
It is needless to inquire whether the provisions of the Code sanctioning this indictment may consist with the 5th article of the amendments to the Federal constitution; for the reason, that these amendments were never designed to operate upon the States, as restrictive of their powers, but were demanded by the States as safe-guards against encroachments on the part of the Federal Government. The history of the country informs us, that the resolutions proposing these amendments were offered by Mr. Madison, to meet objections made by some of the State conventions, to the unrestricted powers conferred upon the General Government by the constitution as it then stood, in regard to certain subjects-matter of legislation. The preamble of the resolutions, as they passed Congress, may serve to strengthen this conclusion. It declares : “ The conventions of a number of the States having, at the time of their adopting the constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added; and, as extending the grounds of public confidence in the government, will best insure the beneficent ends of its institution: Resolved,” See.. “ that the following articles be proposed,” &c. The States, as independent sovereignties, could certainly have protected their own citizens, by their fundamental laws, from .the effects of improper legislation by their legislative assemblies; but as the citizens of all *691the States were to be amenable to the laws of the General Government, when passed in conformity to the powers conferred by the Federal constitution, over which laws the States, as such, possessed no power, it was deemed essential to the security of the citizens, and to the rights of the States, to place further restrictions upon the powers of the Federal Government, as the same is provided for in these amendments. But we are not left to reason and the history of the country alone to sustain our view. The authority of adjudged cases abundantly sanctions it.—Jackson v. Wood. 2 Cow. Rep. 818, n. b; Livingston v. The Mayor of New York, 8 Wend. 100; Barron v. The Mayor and City Council of Baltimore, 7 Peters’ Rep. 247, per C. J. Marshall. Indeed, the point has been expressly so ruled by this court, in Boring et al. v. Williams, 17 Ala. 510.
So much for the provision of the Federal constitution.
With respect to the legislative power of the State, we hate frequently announced that in reference to all legitimate subjects-matter of legislation, this power was unlimited, except in so far as it was restrained by the Federal or State constitutions (Stein v. The Mayor and Aldermen of the City of Mobile, at the present term; Ex parte Pickett, 24 Ala. 96); while the Federal Government can rightfully exercise no power save such as is expressly delegated by the constitution of that government, and such as is necessary and proper to carry into execution some express power.
Having seen that the Federal constitution does not in any wise restrict the State in the exercise of its legislative functions, in prescribing the forms of the indictments and the mode of criminal trials, let us next consider what influence our own bill of rights has upon the subject.
The twelfth section of the bill of rights evidently inhibits the Legislature from passing any law authorizing a party to be proceeded against criminally by information, for an indictable offence; but this in no wise restrictsthe Legislature from enacting laws defining offences and their punishment, and proscribing forms of indictments suited to them, as well as the mode of trying them. They cannot say a party may be proceeded against for an indictable offence by information — that is, they have no power to say a party can be put upon his trial for an *692offence which is indictable, unless the accusation brought against him is made upon the oath of a grand jury.
We readily concede, that to give effect to the spirit and meaning of this clause, there must, in all prosecutions for indictable offences, be such an accusation at the suit of the State, found to be true by the oaths of a grand jury, as shall furnish to the accused reasonable information of what he is called upon to answer, by setting forth the constituent elements of the offence or crime with which he is attempted to be charged. It Would not be competent for the Legislature to make that an indictment which failed to accuse a party of a crime. Regard must be had to the nature of the accusation, as embodying and setting forth with reasonable certainty a charge of the crime for which the prisoner is to be tried. An indictment for larceny could not, by legislative enactment, be made an indictment for murder, without violating the true spirit and meaning of this provision in the bill of rights ; but if the indictment set forth, With reasonable certainty, the crime for which the accused is to be tried, as the Legislature may alter the common law, it may declare such indictment to be good, notwithstanding it may fail to contain many averments required by the common law to make it valid. There must be an indictment, before a party can be put on his trial for an indictable offence. In other words, there must be “a written accusation of the party, at the suit of the State, of a crime, presented upon oath by a jury of twelve or more men, called a grand jury.” — Archb. Cr. PI. (6 ed.) vol. 1, p. 63, and notes.
In the case before üs, there is an indictment accusing the prisoner on the oath of a grand jury, that on a named day, he “ unlawfully and with malice aforethought, killed George T. Sharp, against the peace,” &c. Now, although this indictment would not be good at the common law, because it is wanting in certain formalities which were required by the rules of that law; yet it is certainly an indictment — that is, it is a “written accusation of a crime against the prisoner, found by a grand jury ;” and it is a compliance, in our opinion, with the spirit of our fundamental law. This being the accusation, when the prisoner is arraigned for trial, he is entitled to demand the nature and cause of it, and to have a copy of it, in order to enable him to examine it by himself and counsel, so as to test its legal suffi*693ciency by demurrer, or prepare to defend against the charge on the facts. This is all that is meant by the clause in the bill of rights, by which the accused, in criminal prosecutions, has a right to demand the nature and cause of the accusation against him. The charge is not to be concealed from him, but he is entitled to be fully advised as to what the accusation is against him, that he may prepare to meet it. This clause has no bearing upon the question, as to what shall be the form of the accusation, but entitles the prisoner to demand its nature, whether it be good or bad: he has the right, upon his arraignment, to have the indictment read to him : he is thus advised of the nature and cause of it: he has the further right to “ have a copy thereof.” — 10th Sec. Bill of Rights.
Upon the whole, we are satisfied that the Legislature has the power to make this a good indictment for murder in the first degree, as well as for murder in the second degree ; leaving it to the jury to find the degree, and to affix the punishment, within certain restrictions as prescribed by the Code. England, as well as most of the States of this Union, has passed laws simplifying the forms of indictments, and curtailing them of much useless verbiage.
We must then go to our statutes, and not to the common law, to test the sufficiency of this indictment, and tested by these, there is no question as to its sufficiency.
It is not pretended that the prisoner was tried out of the county in which the offence was committed. It was competent for the Legislature to enact that it should not be necessary to allege where the offence was committed, but that the proof must show it to have been within the jurisdiction of the county in which the indictment was preferred. — Code § 8514. The accusation of the commission of the crime, is the gravamen of the indictment. This cannot be dispensed with ; but the particulars, as to time, place, and circumstance, not constituting essential elements in the crime, may be dispensed with in the indictment by the statute, and be left as matter of proof, as establishing or not the jurisdiction of the court. We can see no inconvenience or injury, which could result to the accused, from this, as the statute now secures to him a trial in the county where the offence was committed, unless upon his motion it is taken to another county on change of venue.
*694As to the objection, that the indictment fails to show that the grand jury were sworn, we have only to say, that we have frequently decided that the caption of the indictment, showing when, and where, and by whom the court was held, and who were selected and sworn as grand jurors, must be looked to in aid of the indictment, as forming a part of the record, and need not be repeated in the body of the indictment. Reeves v. The State, 20 Ala. 33; State v. Murphy, 9 Porter 487; State v. Morgan, 19 Ala. 556.
As to the verdict and judgment: The jury find the prisoner “ guilty of murder in the first degree,” and say they “ sentence him to be hung.” This verdict is sufficient, as it conforms to the Code (§ 3082), except as to the verbiage used in the conclusion. The Code (§ 3080) provides, that the prisoner, being found guilty of murder in the first degree, shall suffer death, or imprisonment for life, at the discretion of the jury trying the same. Here the jury do not say, in so many words, he shall suffer death, but that he shall be hung. This finding is unequivocal. The term “hung,” or “sentencing a man to be hung,” found in this collocation, means to suspend him by the neck until he is dead.' — 1 Bouv. Law Dictionary, Title “ Hanging” ; Web. Die.
That the jury say they “ sentence” him to be hung, is no objection. It is not the most appropriate word perhaps ; but they evidently mean, that, in their discretion, they affix to the crime of which they convict him the punishment of death. Any other construction would be altogether hypercritical, and cannot be indulged. The end of the statute is attained, when the jury, by unequivocal terms, certify to the court the punishment they have affixed; and their verdict must not be too rigidly construed, but according to the plain, common-sense meaning of the terms they use, as understood in the community.—Nabors v. The State, 6 Ala. 200; 1 Chit. Crim. Law 644,-6, and notes ; State v. Upton, 1 Dev. 513. It is sufficient, if their meaning is obvious and unmistakeable, although they may not couch their verdict in technical language.
The objection to the sentence of the court, that the dates of such sentence and the day fixed for execution thereof are expressed by figures, cannot be sustained. In modern times, this has been held to be sufficient, even in the indictment, if the date *695is plainly legible.—5 Bacon’s Abr., by Bouv., 81; State v. Hodgeden, 3 Verm. 481; State v. Raiford, 7 Por. 701.
We come next to consider the questions raised upon the bill of exceptions taken in the case.
When the office of constable is vacant in a justice’s precinct, or in cases of emergency, the justice has power to appoint a person to act in his place, without requiring bond and security ; and such appointment extends to the execution of all process, except the collection of money on executions. The justice is the proper judge of the emergency requiring such appointment; and when one has thus been appointed for the execution of a warrant, there can be no doubt of his authority to do so any where in the county of the justice’s residence. — Code § 711.
The court below, by an affirmative charge, and which we cannot intend was abstract, affirmed the validity of the warrant under which the deceased was proceeding to make the arrest when killed by the prisoner. If the warrant was invalid upon its face, and showed that the justice had no jurisdiction of the matter involved in it, then, as it would be void, and as the officer in whose hands it was placed for execution must be presumed to know the law, and could see that it was void, he was a trespasser. Although there is much uncertainty and contrariety of opinion in the books, as to when an executive officer shall be protected by virtue of process placed in their hands, yet, we believe, they are all agreed in this : “that a constable cannot justify any arrest by force of a warrant from a justice of the peace, which expressly appears, upon the face of it, to be for an. offence whereof the justice of the peace hath no jurisdiction,” &c. I quote the language of Serjeant Hawkins (Pleas, vol. 2, p. 130, § 10), who says that this seems clear.
If, then, it appears upon the face of this warrant that the justice had no jurisdiction to order the arrest of the prisoner, the deceased, in his attempt to execute it, might be regarded by the prisoner as a trespasser, as soon as he entered his premises, and might be treated as such. This is the law, as clearly announced in Duckworth v. Johnson, 7 Ala. 578; Sasnett v. Weathers, 21 ib. 673; and Crumpton v. Newman, 12 ib. 199. How far the prisoner might lawfully go in resisting the deceased, conceding that the latter was a tres*696passer, is fully discussed in Carroll v. The State, 23 Ala. 28, and need not now be more particularly adverted to.
Is the warrant in this case void upon its face ? Does it show, upon its face, that the justice had no jurisdiction of the complaint, the substance of which the law requires should be stated in it? — Code § 3341. Upon our first examination, we thought it was not void, but informal merely— Upon having our attention more particularly called to it, by the counsel for the prisoner, we are fully satisfied that our first impression was wrong, and that it is wholly void.
The Code (§ 3340) declares, that, “ Whenever complaint is made to a magistrate, that any person has threatened, or is about to commit an offence on the person or property of another, he must examine the complainant, and any witness he may produce, on oath, reduce such examination to wri- ' ting, and cause it to be subscribed by the parties so examined.” Section 3341 declares, “If, on such examination, it appears that there is reason to fear the commission of any such offence, by the person complained of, the magistrate must issue a warrant, directed to any lawful officer of the State, containing the substance of the complaint, and commanding such officer forthwith to arrest the person complained of, and bring him before him, or some other magistrate having jurisdiction in the matter.”
The warrant in this case appears, upon its face, to be predicated upon the affidavit of Mary Noles, wife of the prisoner, which merely states that she “is afraid that her husband, Joseph Noles, of said county, laborer, will beat, wound, maim or hill her, or do her some bodily hurt.” It sets forth no other cause of complaint, than in the recital of this oath, and proceeds “ these are therefore to command you,” &c.
This statute, being in restraint of liberty, and penal, must be strictly construed ; that is, it may not be enlarged, by construction, beyond the plain import of the terms in which it is couched.
According to it, two cases only exist, where sureties for the peace may be demanded by the complaint of a party : one is, where any person “ has threatened” to commit an offence on the person or property of another; the other, where such person “is about to commit” such offence.
*697This warrant embraces neither, but merely that the prisoner’s wife “is afraid” he will commit such offence. This is a substantive and distinct ground, not embraced by the statute ; and for the obvious reason, that we should have but little security for personal liberty, if the mere fears of others, however groundless, could deprive us of it.
Wo are aware, that this looks like a technical ground upon which to reverse a cause of this grave importance; but it is our duty to decide the law, irrespective of consequences; and being satisfied that the warrant is void, we have no alternative but to reverse the sentence, and remand the cause, that the prisoner may be again tried.
This judgment will be accordingly here rendered, and the prisoner will remain in custody to await his further trial.