PAMPLIN v. COMMONWEALTH

1. INDICTMENTS, INFORMATIONS AND PRESENTMENTS — Sufficiency — Section 4865 of the Code of 1936 — Case at Bar. — In the instant case accused contended that a demurrer to the indictment should have been sustained because it was not alleged that he did some act towards the commission of the offense charged.

Held: That under section 4865 of the Code of 1936, the indictment was sufficient and the demurrer was properly overruled.

2. INSTRUCTIONS — Repetition of Instructions — Where Subject Matter Embraced in Given Instructions — Case at Bar. — In the instant case it was claimed that the court erred in not granting a certain instruction offered by the accused, but the Supreme Court of Appeals found that the subject matter of this instruction was embraced in another instruction which was given by the court and which clearly stated the applicable law, so that there was no error in the refusal to grant the requested instruction.

PER CURIAM.

It will not be necessary to state the facts in this case.

The accused contends that the demurrer to the indictment should have been sustained, because it was not alleged that he did some act towards the commission of the offense charged. Under Code, section 4865, as amended by Acts 1930, chapter 238, we think the indictment was sufficient and that the trial court properly overruled the demurrer.

It was also claimed that the court erred in not granting instruction No. 7 offered by the accused but we find that the subject matter of this instruction was embraced in instruction No. 6, which was given by the court. It clearly stated the applicable law. We also think there was no error in amending instruction No. 7, and granting it as amended.

Our conclusion is that the evidence supports the verdict and judgment. The point made that the order showed that thirteen jurors tried the case, was not insisted upon in oral argument. It was not claimed by counsel for the accused that the order imported a verity, in fact it was admitted by counsel at bar that twelve jurors tried the case, and the order showing that thirteen jurors sat was incorrect.

We think the judgment should be affirmed.

Affirmed.