Ex parte State ex rel. Attorney General
| Decision Date | 22 June 1922 |
| Docket Number | 6 Div. 708. |
| Citation | 93 So. 383,207 Ala. 656 |
| Parties | EX PARTE STATE EX REL. ATTORNEY GENERAL. v. STATE. COKER |
| Court | Alabama Supreme Court |
Certiorari to Court of Appeals.
Petition by the State of Alabama, on the relation of its Attorney General, for certiorari to the Court of Appeals to review and revise the judgment and decision of said court in the case of Horace Coker v. State of Alabama, 93 So. 384. Writ awarded, and judgment reversed and remanded.
Harwell G. Davis, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.
William E. James, of Cullman, for defendant.
The Court of Appeals holds, Merritt, J., dissenting, that the trial court committed reversible error in refusing the general charge requested by the defendant as to count 2 of the indictment, not because of failure of proof or because the thing charged was before the statute under which the indictment was framed became effective, but upon the sole ground that said count was a nullity, in that it charged no offense. If this count of the indictment charged no offense then it would seem that the defendant was entitled to the general charge as to that count. Cagle v. State, 151 Ala. 84, 44 So. 381; Shelton v. State, 143 Ala. 99 39 So. 377. We cannot agree, however, that count 2 of the indictment charges no offense that would support a conviction. It is true that it is a new offense, and covers a period both when the thing charged was and was not a violation of the law, and was defective upon appropriate demurrer for a failure to aver the time of the commission of the alleged offense. Glenn v. State, 158 Ala. 44, 48 So. 505; Bibb v. State, 83 Ala. 84, 3 So. 711; McIntyre v. State, 55 Ala. 167.
It is also true that on demurrer indictments should be construed most strongly against the pleader, and without inferences in favor of same; but the rule is different in the absence of a demurrer, and when they are challenged by a charge upon the theory that they will not support a conviction. If count 2 charged the time of having a still at a time when the same was not prohibited by law, it would not state an offense but, as it is, it charges an offense punishable by law during a part of the time covered thereby, and is merely defective and uncertain and subject to an appropriate demurrer. It is not wanting in any of the essentials of what constituted a violation of law at the time it was returned and for several months prior...
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Hill v. State
...our Supreme Court and is consequently conclusive of this appeal.' He then quoted from the opinion in Ex parte State ex rel. Attorney General (Coker v. State), 207 Ala. 656, 93 So. 383, 384, where the Supreme Court in reversing this court said, among other things, "We cannot agree, however, ......
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Holt v. State
...83 Ala. 84, 3 So. 711; Marks v. State, 159 Ala. 71, 89, 48 So. 864, 133 Am.St.Rep. 20; Ex parte State ex rel. Atty. Gen., (Coker v. State), 207 Ala. 656, 93 So. 383. In Coker case, supra, the court held that where an indictment charges a new offense and covers a period when the thing charge......
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Dean v. State
...offense. This rule is recognized and approved by our Supreme Court in an opinion by Anderson, Chief Justice, in the case of Coker v. State, 207 Ala. 656, 93 So. 383, which case has been consistently followed by this Court and now we think must govern this appeal. Williams v. State, 24 Ala.A......
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Holt v. State
... ... State, 159 Ala. 71, 89, 48 So. 864, 133 ... Am.St.Rep. 20; Ex parte State ex rel. Atty. Gen. (Coker ... v. State), 207 Ala. 656, 93 So. 383 ... being no special provision contrary to the general provisions ... of the Code, § 5531, became effective on April 3, 1937, ... Acts, Extra Session, 1936-37, pp. 40-85 ... The ... Attorney General's brief concedes that failing to aver ... the offense was ... ...