Glover v. State
| Decision Date | 17 December 1914 |
| Docket Number | 624 |
| Citation | 11 Ala.App. 287,66 So. 877 |
| Parties | GLOVER v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Law and Equity Court, Walker County; T.L. Sowell, Judge.
Rich Glover was convicted of violating the prohibition law, and he appeals. Affirmed.
The affidavit, omitting formal charging part, is as follows:
Rich Glover, whose name is to affiant otherwise unknown within the last 12 months, and within said county, sold offered for sale, kept for sale, or otherwise disposed of spirituous, vinous, or malt liquors, contrary to law, or sold, offered for sale, kept for sale, or otherwise disposed of prohibited liquors and beverages, against the peace and dignity of the state of Alabama.
The motion to quash is based on the ground that it does not appear in either of the complaints or warrant of arrest that the justice of the peace, who issued said warrant of arrest had probable cause for believing that the offense charged had or has been committed. The demurrers were that it does not charge the commission of the alleged offense within 12 months before making the affidavit, but charges that the offense was committed within the last 12 months, which includes the time since the making of said affidavit, and for the reasons set out in the motion to quash.
The affiant alleges in the affidavit that he has probable cause for believing and does believe, etc.
L.D Gray, of Jasper, for appellant.
R.C. Brickell, Atty. Gen., and W.L. Martin, Asst. Atty. Gen., for the State.
The ruling on the motion to quash the warrant and affidavit is not reviewable here, in the absence of a bill of exceptions. Fitzpatrick v. State, 169 Ala. 1, 53 So. 1021.
The time at which the offense was committed was not a necessary averment of the affidavit. It could have been averred as committed at any day before making the affidavit charging the offense (Code, § 7139), and the defendant could have required the state to show that the offense was committed at that time prior to the preferment of the charge that was within the period prescribed by statute in which it is made punishable. Yancey v. State, 1 Ala.App. 226, 55 So. 267. See also, McDade v. State, 20 Ala. 81, and O'Brien v. State, 91 Ala. 25, 28, 8 So. 560. The demurrer to the affidavit on the ground that it charged the offense to have been committed "within the last 12 months," was properly overruled. Busby v. State, 10 Ala.App. 183, 65 So. 307.
The...
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