Farrister v. State

Decision Date07 February 1922
Docket Number7 Div. 788.
Citation18 Ala.App. 390,92 So. 504
PartiesFARRISTER v. STATE.
CourtAlabama Court of Appeals

Appeal from Circuit Court, Clebourne County; A. P. Agee, Judge.

William Farrister was convicted of violating the prohibition law, and he appeals. Affirmed.

W. C. McMahan, of Heflin, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

BRICKEN P.J.

This appeal is upon the record. The indictment contains two counts; the first count charging the making, manufacturing distilling, etc., of prohibited liquors. The second count charged that he sold, gave away, or had in his possession a still, etc., to be used for the purpose of manufacturing prohibited liquors.

Neither count contained the allegation as to the time of the alleged commission of the offense charged, and it is here contended that the indictment for this reason is void, appellant's counsel citing Howard v. State, 17 Ala. App. 464, 86 So. 172.

The defendant was convicted under the first count of the indictment. The insistence that the first count of this indictment is void for failing to aver the time of the alleged commission of the offense, or that said alleged offense was committed subsequent to the date of the approval of the act in question, January 25, 1919 (Acts 1919, p. 6) cannot be sustained, for the reason that the first count is free from the uncertainty which existed in the indictment in the Howard Case, supra. The indictment in the Howard Case, by its terms, charged both a misdemeanor and a felony, having been preferred at a time when the period covered by the indictment was under the law both a misdemeanor and a felony and for this reason this court properly held the indictment void and the reasons stated therein are sound. But here the indictment charges a felony only, and does not charge a misdemeanor, for on the face of the indictment the misdemeanor is barred by the statute of limitations of 12 months. After the expiration of 12 months from the date of the approval of the act in question, January 25, 1919, there has been no necessity to allege that the offense of distilling, making, or manufacturing of alcoholic spirituous, malted, or mixed liquors or beverages, a part of which was alcohol, was committed subsequent to the approval of this act. During the period, however, of the first 12 months immediately subsequent to the approval of this act time was an essential ingredient or a material element of this offense in order to differentiate the charge or accusation as to whether it was a misdemeanor or a felony. But, as before stated, after the expiration of the period when the alleged offense charged could not be a misdemeanor, the necessity to so differentiate ceased to exist, the indictment showing upon its face that it...

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7 cases
  • Hill v. State
    • United States
    • Alabama Court of Appeals
    • January 17, 1956
    ...of McMullen v. State, 17 Ala.App. 504, 86 So. 175, and also cites Laminack v. State, 18 Ala.App. 399, 92 So. 502 and Farrister v. State, 18 Ala.App. 390, 92 So. 504, as authority for his contention that defendant was entitled to the general affirmative charge upon the same As was said by Pr......
  • Gayden v. State, 3 Div. 970
    • United States
    • Alabama Court of Appeals
    • August 31, 1954
    ...time was not an essential ingredient or a material averment of the indictment in order to differentiate the accusation. Farrister v. State, 18 Ala.App. 390, 92 So. 504. See also, 12 Ala.Digest, Indictment, In the early case of State v. Click, 2 Ala. 26, the accused was indicted for carrying......
  • Winchester v. State
    • United States
    • Alabama Court of Appeals
    • January 13, 1925
    ...count. May v. State, 85 Ala. 14, 5 So. 14; Chappell v. State, 52 Ala. 359; Handy v. State, 121 Ala. 13, 25 So. 1023; Farrister v. State, 18 Ala.App. 390, 92 So. 504; Norman v. State, 13 Ala. 337, 69 So. 362. But in cases laying down the above rule no objection was taken to the indictment. I......
  • Dawkins v. State
    • United States
    • Alabama Court of Appeals
    • February 5, 1924
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