Clark v. State
| Decision Date | 21 June 1921 |
| Docket Number | 4 Div. 673 |
| Citation | 18 Ala.App. 217,90 So. 16 |
| Parties | CLARK v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, Barbour County; J.S. Williams, Judge.
Herbert Clark was convicted of violating the prohibition laws, and he appealed. Reversed and rendered.
G Ernest Jones, of Clayton, for appellant.
Harwell G. Davis, Atty. Gen., for the State.
Count 5, of the indictment under which this defendant was convicted, was defective for the reason that it covered a period of time when it was no offense against the law to commit the acts complained of therein. This count was based upon the statute passed by the Legislature during its 1919 session, Acts 1919, p. 1086, and was approved September 30 1919. It contained no special provision as to its date of operation, and, it being a penal act, it therefore became operative and took effect 60 days after its approval, under the provisions of section 7805, Code 1907. It therefore appears that the act took effect on November 30, 1919, and not September 30, 1919, as alleged. During the period of 60 days immediately after its approval which period covered all the month of October, 1919, and also the month of November of that year up to the 30th day thereof, the defendant could have committed every act charged or contained in count 5 without violating any law of this state.
The statute being a new one, creating the offense within the period of time (three years) covered by the indictment, time therefore was a necessary ingredient, and it was necessary to allege that the offense was committed during the time covered by the indictment and in which the law was in operation or effective. McIntyre v. State, 55 Ala. 167; Bibb v. State, 83 Ala. 84, 3 So. 711; Dentler v. State, 112 Ala. 70, 20 So. 592. For it certainly cannot be questioned that when a statute makes an act punishable from and after a given day, the time of the alleged commission of the act is an essential ingredient of the offense to the extent that it must be alleged in the indictment to have been committed after that day. This identical question has been so decided during the present term of this court. Stephen Isbell v. State, 90 So 55; McReynolds v. State, 89 So. 825.
While this question is conclusive of this appeal, and for that reason it would appear that nothing further need be said, yet a careful examination of the testimony as shown by the record fails to disclose any evidence whatever to sustain the verdict of the jury or the judgment of guilt rendered in this case, nor is there any evidence from which the guilt of the defendant could be inferred. Upon the trial of this case there was evidence showing that a still was found in a pasture, some considerable distance from this defendant's house, and that a path led from defendant's house down to a spring and on from there over a fence into the pasture where the still was located. Some of the testimony showed that this path continued on by the still through and out of the pasture in the direction of other houses as near or...
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Crafts v. State
...the conviction of the accused (for possessing a still)." Whited v. State, 22 Ala.App. 492, 493, 117 So. 396 (1928); Clark v. State, 18 Ala.App. 217, 90 So. 16 (1921). See also Deas v. State, 44 Ala.App. 472, 213 So.2d 412 (1968); Etheridge v. State, 42 Ala.App. 77, 152 So.2d 689 (1963); Jon......
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Griggs v. State
... ... jury, and we are not convinced that the importance of ... enforcing judgments of conviction in prohibition cases ... renders a change of the rules of evidence necessary or ... desirable, or that there should be one rule is prohibition ... cases and another rule in other criminal cases. Clark v ... State (Ala. App.) 90 So. 16 ... For the ... errors pointed out, the judgment is reversed, and the cause ... is remanded ... Affirmed ... under mandate of Supreme Court, Ex parte State ex rel. Atty ... Gen., in re Griggs, 93 So. 501 ... MERRITT, ... J ... ...
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Coker v. State
... ... count. The second count charged the possession of a still by ... defendant after September 30, 1919. By all of the decisions ... of this court and the Supreme Court in similar cases, this ... count has been held to be fatally defective. McReynolds ... v. State (Ala. App.) 89 So. 825; Clark v. State ... (Ala. App.) 90 So. 16; Isbell v. State (Ala ... App.) 90 [18 Ala.App. 552] South. 55; Howard v ... State, 17 Ala. App. 464, 86 So. 172; Glenn v ... State, 158 Ala. 44, 48 So. 505; Marke v. State, ... 159 Ala. 71-89, 48 So. 864, 133 Am. St. Rep. 20; Kelly v ... State, 171 Ala ... ...
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Leith v. State
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