Bibb v. State

• Decision Date: 01 February 1888
• Citation: 3 So. 711,83 Ala. 84
• Parties: BIBB v. STATE.
• Court: Alabama Supreme Court

3 So. 711

83 Ala. 84

BIBB v. STATE.

Supreme Court of Alabama

February 1, 1888

Appeal from city court, Montgomery county; THOMAS M. ARRINGTON Judge.

Indictment for keeping gaming table.

Watts & Son, for appellant.

Thos. N. McClellan, Atty. Gen., for appellee.

SOMERVILLE J.

The indictment charges, omitting the formal parts, that the defendant "kept or exhibited a gaming table for gaming or was interested or concerned in the keeping or exhibition thereof."

1. Section 4208 of the Code of 1876, before amendment, provided that "any person who keeps, exhibits, or is interested or concerned in keeping or exhibiting, any table of gaming, of whatever name, kind, or description, not regularly licensed under the laws of this state, must, on conviction, be fined not less than one hundred dollars, nor more than one thousand dollars, and may also be imprisoned in the county jail, or sentenced to hard labor for the county, for not more than twelve months." Code 1876, § 4208. On February 10, 1887, this section was amended so as to expressly declare that such person shall be guilty of a felony, and provides that "on conviction thereof [he] must be fined not less than one hundred nor more than five hundred dollars, and shall also be imprisoned in the penitentiary for not less than six months, nor more than two years, and on a second or any subsequent conviction shall be imprisoned in the penitentiary for not less than two nor more than five years." Acts 1886-87, p. 142. It is observable that the keeping of a gaming table was, under section 4208 of the Code of 1876, only a misdemeanor, punishable by fine and imprisonment in the county jail, or sentence to hard labor for the county. The amending act makes it a felony, punishing the offense not only by fine, but by imprisonment in the penitentiary. A conviction of felony in this state-by which is meant any public offense which may be punished by death or by confinement in the penitentiary-not only operates to terminate the right of the convict to execute the office of executor, administrator, or guardian, and extinguish all private trusts not susceptible of delegation by him, but also disqualifies him from holding office, or exercising the privilege of the elective franchise. Code 1876, § 4511; Washington's Case, 75 Ala. 582. The two classes of crimes, therefore, misdemeanors and felonies, are signally distinguished as to the nature of their punishment and their legal effect upon the civil rights of the citizen. The indictment does not allege when the act charged was done. It does not show whether it was committed before the act of February 10, 1887, was passed, or afterwards. It does not, therefore, make it apparent whether the accusation brought against the defendant is a misdemeanor or a felony.

2. It was objected in the lower court, and the objection is renewed here, that this defect was fatal to the indictment, either on demurrer or motion in arrest of judgment. We are of opinion that this point is well taken. In view of the fact that the indictment was found on July 15, 1887, and the amendatory act, entirely changing the nature and punishment of the offense charged, was only enacted on February 10, 1887, or about five months previous, the indictment should have stated the time when the offense was committed, or else have shown that it was after the date of the new law making it a felony. At common law it was formally necessary to aver the time when the crime was committed. It is provided by statute in this state that it is unnecessary to state the precise time, but only that the offense charged was committed before the finding of the indictment, "unless time is a material ingredient of the offense." Code 1876, § 4788; Code 1886; § 4375. This principle is broader than the more recent common-law rule which provided, that the time of committing an offense need not be averred, except when it "entered into the nature of the offense," but might be laid on any day previous to the time of finding the bill, within the period in which it could be prosecuted before a bar under the statute of limitations. Shelton v. State, 1 Stew. & P. 208; Whart. Crim. Pl. (8th Ed.) §§ 120, 130. The crime of burglary, which was required to be committed at some hour of the night, and offenses against the Sunday law, were examples of this kind. But the statute, in our opinion, goes further than this. It makes the averment of the time necessary when it is an element which affects the guilt or innocence of the party charged, or the grade of the crime, at least within the period before the finding of the indictment when the crime could be prosecuted.

The reason of this is apparent. The accused has a constitutional right to "demand the nature and cause of the accusation" against him, and to "have a copy thereof." Const. 1875, art. 1, § 7. The indictment is the written accusation in the prescribed constitutional form. Where the indictment is, on its face, so ambiguous as not to show whether it charges a misdemeanor or a felony, it is liable to the objection of uncertainty, and does not conform to this requirement. It is not a copy of the real accusation against the defendant. There is another test which seems equally fatal. If the defendant should plead guilty to this indictment, or the jury should find him guilty "as charged," how could the court look at the record and know what judgment to pronounce-whether- "whether to refer the verdict to the misdemeanor, or to the felony,-whether to sentence the defendant under section 4208 of the Code as it originally stood or as amended by the new law of February, 1887? These reasons seem to us to be sufficient to render the indictment fatally defective, either on demurrer or motion in arrest of judgment. The case of State v. Wise, 66 N.C. 120, is one in every respect analogous to the present one. The defendant there was indicted for burglary, and the indictment failed to state the time when the offense was committed. By a statute passed in 1869 this crime was punished by confinement in the penitentiary. By an amendatory act, which went into effect April 4, 1871, it was made punishable by death. It was held by Chief Justice PEARSON, speaking for the whole court, that the indictment should have averred the time when the burglary was committed, so as to show on its face whether the punishment of confinement in the penitentiary, or of death, under the one or the other statute, should be assessed. In McIntyre's Case, 55 Ala. 167, a principle was settled bearing in analogy upon this question. A law was passed and went into effect on the 1st of April, 1875, requiring a license from any person who engaged in "the business of taking pictures." It was held that an indictment found in July of that year, which was within less than 12 months from the passage of the act, the period of the statutory bar for the prosecution of misdemeanors, was fatally defective for failing to allege that the act charged was committed after the law went into effect. Otherwise it may have been so construed as to charge no offense. 1 Bish. Crim. Proc. (3d Ed.) § 404. The case of Harris v. State, 60 Ala. 50, is distinguishable from this case. The indictment there showed that it was found under the new statute, pursuing it strictly by averring a larceny of "a part of an outstanding crop of corn," the property of a named owner. So in Adams v. State, Id. 60 Ala. 52, the averment of time was not regarded as necessary to remove the supposed ambiguity of the charge, as being either a misdemeanor or a felony, because at the time the indictment was found the misdemeanor was barred. Hence the verdict of guilty necessarily referred to the felony,-grand"grand larceny,-which was not barred by limitation of time. A like remark may be made of Harris' Case, supra. These rulings accord with the views of approved text writers. 1 Bish. Crim. Proc. (3d Ed.) §§ 404,...