Howard v. State

• Citation: 86 So. 172,17 Ala.App. 464
• Decision Date: 13 April 1920
• Docket Number: 4 Div. 609
• Parties: HOWARD v. STATE.
• Court: Alabama Court of Appeals

86 So. 172

17 Ala.App. 464

HOWARD v. STATE.

4 Div. 609

Court of Appeals of Alabama

April 13, 1920

Rehearing Denied June 1, 1920

Appeal from Circuit Court, Barbour County; J.S. Williams, Judge.

Burrell Howard was convicted of manufacturing prohibited liquors, and he appeals. Reversed and rendered.

McDowell & McDowell, of Eufala, for appellant.

J.Q Smith, Atty. Gen., and Lamar Field, Asst. Atty. Gen., for the State.

BRICKEN P.J.

The indictment upon which the defendant was tried and convicted was framed under section 15 of the act approved January 25 1919, for the suppression of intemperance, etc., said act being commonly called and known as the "Bone Dry Law." Acts 1919, p. 6. The indictment contained only one count and is as follows:

"The grand jury of said county charge that before the finding of this indictment Burrell Howard did distill, make or manufacture, alcoholic, spirituous, malted, or mixed liquors or beverages containing alcohol, contrary to law against the peace and dignity of the state of Alabama."

This indictment was found at the spring term, 1919, of said court, and was returned into open court by the grand jury, and filed on April 29, 1919.

Prior to the enactment of the so-called bone dry law, it was unlawful to make or manufacture any of the liquors designated in section 1 of said act, which includes almost every known alcoholic or intoxicating liquors or beverages, and to do so was declared to be a misdemeanor, punishable by fine, or hard labor for the county in which the offense was committed, or by imprisonment in the county jail, one or both. The later act approved January 25, 1919, was in effect an amendment to the former statute, and changed the offense from that of a misdemeanor to a felony, the punishment under the last statute being confinement at hard labor in the penitentiary for not less than one year or longer than five years, to be fixed within these limits by the court or judge trying the case. It thus appears that while the offense of making or manufacturing prohibited liquors under the statute in existence prior to January 25, 1919, was a misdemeanor, it was made a felony to do so on and after that date. Therefore during the period covered by this indictment the offense charged here was both a misdemeanor and a felony, resulting in the fact that time became a material ingredient of this offense. This being true, under the statute and the universal decisions of this court and of the Supreme Court it became necessary for the indictment to aver the time when the offense complained of was committed. Code 1907, § 7139; Miller v. State, 16 Ala.App. 534, Bibb v. State,

83 Ala. 84, 3 So. 711. An indictment under section 15 of the bone dry law (Acts 1919, p. 16), for the offense of distilling, making, or manufacturing alcoholic or other prohibited liquors or beverages, should either aver the date of the commission of the offense (which date must appear to have been subsequent to the date of the passage and approval of the act), or that said offense was committed before the finding of the indictment and after (or since) the 25th day of January, 1919. Authorities supra.

The indictment here does not contain this necessary, material averment, for it does not show whether the offense was committed before the act of January 25, 1919, was passed and approved, in which event the offense would have been a misdemeanor, or afterwards, which would have made it a felony, resulting, therefore, that it does not make...