Isbell v. State
| Decision Date | 21 June 1921 |
| Docket Number | 7 Div. 738 |
| Citation | 18 Ala.App. 223,90 So. 55 |
| Parties | ISBELL v. STATE. |
| Court | Alabama Court of Appeals |
Appeal from Circuit Court, St. Clair County; O.A. Steele, Judge.
Stephen Isbell was convicted of violating the prohibition laws, and he appeals. Reversed and rendered.
The facts on which the opinion is rested sufficiently appear therefrom.
Frank B. Embry and M.M. Smith, both of Pell City, for appellant.
Harwell G. Davis, Atty. Gen., for the State.
The indictment contained two counts. The first count charged that the defendant subsequent to the 25th day of January, 1919 did distill, make, or manufacture alcoholic, spirituous malted, or mixed liquors or beverages, a part of which was alcohol, contrary to law. But as there was no evidence adduced upon this trial to sustain the averments contained in this count, the court very properly charged the jury to that effect, thereby eliminating count one of the indictment.
Count 2 charged that subsequent to the 30th day of September (without naming or designating any year) the defendant did manufacture, sell, give away, or have in his possession a still, apparatus, appliance, or a device substitute therefor to be used for the purpose of manufacturing prohibited liquors or beverages, etc.
That the conviction of this defendant cannot be sustained under this second count of the indictment is so clear and patent the question needs no discussion. In the first place, this count is void for uncertainty, as it alleges no year, and therefore so far as this court may know, and so far as the defendant could have known, the act complained of might have been committed at a time when to do the very things charged in this indictment it would have been no offense against any law of this state. The offense attempted to be charged in this count of the indictment is a new offense, and was unknown to the statutory law of this state, until the Legislature passed the act during its 1919 session (Acts 1919, p. 1086), which was approved on September 30, 1919, but did not become operative or of force and effect until 60 days after its approval; there being no special provision to the contrary in the act itself. Section 7805, Code 1907.
It must therefore be held that this count of the indictment is void for uncertainty. Howard v. State, 17 Ala.App. 464 86 So. 172; McReynolds v. State, 89 So. 825.
Moreover, if the indictment had contained the averment that the...
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Coker v. State
...is, question the sufficiency of the indictment. This case is distinguishable from the Cagle Case, 151 Ala. 84, 44 So. 381, and Isbell's Case (Ala. App.) 90 So. 55, in there was no good count in either of these cases, and nothing but a count which would not support a conviction, while in the......
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Laminack v. State
...the second count is fatally defective. McReynolds v. State (Ala. App.) 89 So. 825; Clark v. State (Ala. App.) 90 So. 16; Isbell v. State (Ala. App.) 90 So. 55. As the first count a different rule applies. The manufacture of liquor has been a violation of the statute laws of this state since......
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Hammons v. State
... ... The ... court erred in refusing to give at the written request of the ... defendant the general affirmative charge as to count 2 of the ... indictment. This count was fatally defective and void ... Clark v. State (Ala. App.) 90 So. 16; Isbell v ... State (Ala. App.) 90 So. 55; Howard v. State, ... 17 Ala. App. 464, 86 So. 172; Miller v. State, 16 ... Ala. App. 534, 79 So. 314. This count being void, it would ... not support a conviction. Cagle v. State, 151 Ala ... 84, 44 So. 381 ... Reversed ... and ... ...
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Clark v. State
... ... alleged commission of the act is an essential ingredient of ... the offense to the extent that it must be alleged in the ... indictment to have been committed after that day. This ... identical question has been so decided during the present ... term of this court. Stephen Isbell v. State, 90 So ... 55; McReynolds v. State, 89 So. 825 ... While ... this question is conclusive of this appeal, and for that ... reason it would appear that nothing further need be said, yet ... a careful examination of the testimony as shown by the record ... fails to disclose ... ...