Hill v. State

• Decision Date: 17 January 1956
• Docket Number: 7 Div. 347
• Citation: 38 Ala.App. 404,88 So.2d 880
• Parties: Luther (Loyd) HILL v. STATE.
• Court: Alabama Court of Appeals

Page 880

88 So.2d 880

38 Ala.App. 404

Luther (Loyd) HILL v. STATE.

7 Div. 347.

Court of Appeals of Alabama.

Jan. 17, 1956.

Rehearing Denied Feb. 7, 1956.

Scott, Dawson & Scott, Fort Payne, for appellant.

John Patterson, Atty. Gen., and Wm. H. Sanders, Asst. Atty. Gen., for the State.

The following charges (to which others referred to are pertinently similar) were refused to defendant:

'1. I charge you that before you would be authorized to convict the defendant, you must believe from the evidence that the use of the snake on the occasion endangered the life and health of Mrs. Mina Ruth Turner as well as others, and even though you may be convinced by the evidence that some one else may have been endangered, you would not be authorized to convict the defendant unless the Mrs. Mina Ruth Turner mentioned in the complaint was also endangered.

'9. I charge you that you would not be authorized to convict the defendant in any view of this case unless you are satisfied by the evidence that both the life and health of Mrs. Turner were endangered.'

PRICE, Judge.

The appellant was tried, convicted and fined $50.00 in the County Court of DeKalb County under an affidavit or complaint, sworn to on June 16, 1954, charging that within twelve months before the making thereof appellant did display, handle, exhibit or use a poisonous or dangerous snake or reptile in such a manner as to endanger the life and health of Mina Ruth Turner and various other persons.

Act No. 519, General and Local Acts 1953, which became effective upon approval by the governor on September 3, 1953, and which appears as Sections 419(2) and 419(3) of Tit. 14 Cumulative Pocket Part Code 1940, provides:

'Section 2. It shall be unlawful for any person or persons, to display, exhibit, handle or use any poisonous or dangerous snake or reptile in such a manner as to endanger the life or health of any person.

'Section 3. Any person violating the provisions of this Act shall be guilty of a misdemeanor and punished by a fine of not less than fifty ($50.00) dollars nor more than one hundred and fifty ($150.00) dollars, or by confinement in jail not exceeding six months, or by both such fine and imprisonment, in the discretion of the court.'

Defendant pleaded not guilty and went to trial without questioning the sufficiency of the complaint by demurrer or otherwise. His motion to exclude the evidence and discharge the defendant, made at the conclusion of the State's evidence in chief, on the ground the complaint was not sufficient to sustain a judgment of conviction was overruled.

Appellants insists in brief that if the act complained of was committed prior to September 3, 1953, although within the twelve-month period, it would not be a violation of Act No. 519.

It is specifically provided in section 1 of Act No. 519, supra, that said act supersedes Act No. 45, General and Local Acts 1950, which became effective on October 31, 1950. Act No. 45 is as follows:

'Section 1. Any person who displays, handles, exhibits, or uses any poisonous or dangerous snake or reptile in such a manner as to endanger the life or health of another shall be guilty of a felony, and upon conviction shall be imprisoned for a term to be fixed by the court of not less than one, nor more than five years.'

Until the enactment of Act 519 the offense charged was a felony and subsequent to the approval of said act on September 3, 1953, it was a misdemeanor, so that in the twelve-month period covered by the affidavit the acts complained of were under the statute both a felony and a misdemeanor, and appellant contends that time was a material ingredient of the offense and the affidavit was void for uncertainty in failing to state the time of the commission of the alleged offense.

In Holt v. State, 238 Ala. 219, 193 So. 101, the court cited numerous authorities to the effect that where an indictment covers a period when the offense charged was and was not a violation of the law it was defective upon appropriate demurrer for a failure to aver the time of the commission of the alleged offense.

In Shiflett v. State, 37 Ala.App. 300, 67 So.2d 284, 285, Judge Harwood, writing for this court, stated: 'Where, however, an indictment is for a new offense, or when the grade of an offense has been raised from a misdemeanor to a felony, and covers a period both when the act was and was not an offense, or where it was of a lesser grade, it is defective upon appropriate demurrer if it fails to aver the time of the commission of the alleged offense. Bibb v. State, 83 Ala. 84, 3 So. 711; Howard v. State, 17 Ala.App. 464, 86 So. 172; Holt v. State, 238 Ala. 219, 193 So. 101. This for the reason that under such circumstances time is a material ingredient of the offense.'

In urging that the defendant was entitled to his motion to exclude the evidence and for his discharge because the complaint was not sufficient to support a conviction, counsel relies upon the case 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 theory.

As was said by Presiding Judge Bricken in Cusimano v. State, 33 Ala.App. 62, 31 So.2d 139, 140, 'In connection with the foregoing insistence, and in support thereof, several cases from this court are cited as authority which in some respects sustain portions of counsel's argument, but the sole question involved here has been definitely decided by 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, 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. * * *

'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. * * *"

We conclude therefore that although the affidavit in this case may have been uncertain and subject to appropriate demurrer it was not void and defendant's insistence cannot be sustained.

We quote from the Attorney General's brief which states fairly the salient facts adduced upon the trial:

'The defendant-appellant, Hill, and the prosecuting witness, Turner, are both members of a religious sect known as the Congregational Holiness Church; however, the defendant belongs to one branch of this church and the prosecuting witness is a minister of another. One of the differences between the two groups is that the defendant's group believes in the handling of poisonous snakes as a test of faith, while the other group does not.

'On May 19, 1954, a meeting of the snake-handling group, of which defendant was a member, was held at the home of one Charlie Hall, located in Fort Payne, DeKalb County, Alabama. Hall opened the services with songs and prayer. Turner, the complaining witness, and his wife had been invited to attend the services and, along with other members of the congregation, sat on benches in the meeting-room and participated in the services.

'After the meeting had been in progress for some time, the defendant, Hill, entered the room carrying a box in which there was a fairly large rattlesnake. Hall then stated that the 'believers' were to come to the front of the room where the pulpit was located and where the snake was to be released and handled. The non-believers were to remain behind the first row of benches. (Mr. and Mrs. Turner were sitting on the third row.) Supposedly the snake would not be permitted near the benches and persons sitting on them would be 'safe.'

'The 'test of faith' then began, with all 'believers' who so desired taking the snake in their hands and passing it around among them. One man even put the snake around his neck. There is some conflict in the testimony as to whether or not the snake was ever allowed loose on the floor. The snake was, however, a poisonous rattlesnake and its fangs had not been removed. The Turners were approximately fifteen feet from the snake.'

Defendant, as a witness in his own behalf, admitted that he handled the snake and that the snake was dangerous.

Appellant's main contention is that the statute penalizing the practice of snake handling is unconstitutional in that it is violative of the freedom of religion guaranteed by Art. 1, § 3 of the State Constitution.

The source of the Federal protection of the individual's religious freedom and the limitation upon his right to act in exercising such freedom is pointed out in the opinion of the Supreme Court of the United States in Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 903, 84 L.Ed. 1213, 128 A.L.R. 1352, as follows 'The fundamental concept of liberty embodied in that Amendment [Four-teenth] embraces the liberties guaranteed by the First Amendment. The First Amendment declares that Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof. The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress...