¶1While the statute (section 4901 of the Code of 1896) dispenses with the necessity for stating the precise time at which the offense was committed, the law requires that all indictments must he found on legal evidence, and when an indictment- charges an offense, it means the one testified to before the grand jury, and not one that may have been committed by the defendant at some other time, and which was not considered by the grand jury. While the indictment in the case at bar did not have to aver the precise time the offense was committed, it did charge the defendant with the commission of the offense (meaning, of course, the one testified to before the grand jury), and the law does not authorize the conviction for an offense which was never thought of nor considered by that body.
¶2The question involved in this case is not one which attacks the indictment, but is really one of allegata and probata. The indictment must of necessity charge the defendant with the commission of the offense as disclosed by legal evidence before the grand jury, and the state is not authorized to prove an offense different from the one for which the defendant was indicted, although similar in its character. If, therefore, there Avere two separate and distinct offenses on the part of the defendant, the state could ask for a conviction only for the one for Avliich he was indicted, being the one considered by the grand jury; and, after proving the other default, the defendant had the right to show that it was not the one for which he was indicted. We do not concede that such *136evidence is violative of public policy, because permitting proof of what transpired before the grand jury, as defendants have been, permitted in other instances to- show certain facts presented to- the grand jury. For instance when the indictment avers a fact “unknown,” the defendant has the right to show that it was known. But public policy cannot be considered when to do so would interfere with the constitutional right of a citizen. When a person is tried and convicted for an offense different from the one charged in the indictment, he has been denied his -constitutional right. The case, of O’Brien v. State, 91 Ala. 25, 8 South. 560, is not in conflict with this opinion. There the attempt was to,show that certain witnesses testified to different offenses from the one for which the defendant was tried; but the defendant did not attempt to show that the indictment under which he was being tried was not found on legal evidence. Nor is the case of Sullivan v. State, 68 Ala. 525, in conflict with this opinion. There the defendant was tried under an affidavit.
¶3It is contended that, if a defendant be permitted to- go behind an indictment upon the trial, it will lead to much confusion and embarrassment in the administration of the criminal law. If such be true, we cannot subordinate the constitutional rights of the most obscure citizen to an expedition of trials. There can be little cause, however, for a resort by the defendant to evidence of this character, when the state only attempts to convict a defendant of the offense for which he has been indicted.
¶4So much of the argument of the solicitor as was objected to was improper; but whether the defendant took the proper action to eliminate it or not we need not decide, as this case must be reversed for the reason above indicated.
¶5The trial court committed no error upon the other rulings. The judgment o-f the county court is reversed, and the cause is remanded.
¶6Reversed and remanded.