Davis v. State

• Decision Date: 19 April 1906
• Citation: 40 So. 663,145 Ala. 69
• Parties: DAVIS v. STATE.
• Court: Alabama Supreme Court

40 So. 663

145 Ala. 69

DAVIS v. STATE.

Supreme Court of Alabama

April 19, 1906

Appeal from Circuit Court, Wilcox County; B. M. Miller, Judge.

"To be officially reported."

Clinton Davis was convicted of unlawful sale of intoxicating liquors and he appeals. Affirmed.

The defendant in this case, after the demurrers to the indictment had been overruled, set up the statute of limitations of one year as a bar to the further prosecution of the suit. It appeared that an indictment was found against him for the same offense at the fall term, 1903, which on motion of the solicitor was quashed, whereupon the court made the following order: "The State of Alabama v. Clinton Davis. Indictment for Violating Prohibition Law. Comes the state by its solicitor, and also comes the defendant, into open court and in his own proper person and also by counsel, and the solicitor moves the court to quash the indictment upon the grounds set forth in said motion, to wit, from defects in said indictment arising out of a partial unconstitutionality of the act under which said indictment was found, as decided by the Supreme Court of Alabama in the case of Emma Watson which motion, being duly argued by counsel and understood and considered by the court, is granted. It is therefore considered by the court, and it is the judgment of the court that said indictment be, and the same is, hereby quashed. And it appearing to the court that the defects in said indictment arose out of the unconstitutionality of the law, and that another indictment should be preferred against the defendant, it is ordered by the court that another indictment against said defendant for the same offense be found at the next term of this court, and that he give good and sufficient bond in the sum of $100 for his appearance at the next term of this court to answer said new indictment, and that the sheriff take and approve the same." It was shown that the defendant gave bond at the fall term to answer for his appearance at the next term of the court to meet any indictment the grand jury might prefer against him for the same offense, which was done after the indictment was quashed. The indictment under which he was being tried was found at the next term of the court, but more than 12 months after the commission of the offense charged. It was shown, over a general objection by the defendant, that the defendant had procured a license from the United States government for the sale of whisky.

N. D. Godbold, for appellant.

Massey Wilson, Atty. Gen., for the State.

DENSON J.

The defendant was indicted and convicted for selling vinous spirituous, or malt liquors in Wilcox county in violation of an act of the General Assembly approved December 12, 1882, which act by its terms prohibits the sale of such liquors in said county. Acts 1882-83, p. 234. In the case of Watson v. State, 140 Ala. 134, 37 So. 225, this act was declared unconstitutional in part, but was expressly upheld as a constitutional enactment with respect of its provisions which relate to the kind of liquors for the sale of which the defendant was convicted in this case. On the trial the defendant assailed the constitutionality of the act by demurrer. The grounds of...