Jackson v. State, 7 Div. 513.

• Citation: 182 So. 83,236 Ala. 75
• Decision Date: 12 May 1938
• Docket Number: 7 Div. 513.
• Parties: JACKSON v. STATE.
• Court: Alabama Supreme Court

182 So. 83

236 Ala. 75

JACKSON v. STATE.

7 Div. 513.

Supreme Court of Alabama

May 12, 1938

Certiorari to Court of Appeals.

Petition of the State of Alabama, by its Attorney General, for certiorari to the Court of Appeals to review and revise the judgment and decision of that Court in the case of Jackson v. State, 182 So. 82.

Writ granted; reversed and remanded.

Motley & Motley, of Gadsden, for respondent.

A. A Carmichael, Atty. Gen., and Silas C. Garrett, III, Asst Atty. Gen., for the State.

BROWN Justice.

The defendant was indicted and convicted of the offense denounced by section 3 of Act No. 671, approved July 25, 1931, entitled "An Act To Suppress The Evils Of Gambling Devices," etc., Gen.Acts 1931, pp. 806-809.

The language of the indictment is: "The Grand Jury of said County charges that before the finding of this Indictment Rube Jackson whose name is unknown to the Grand Jury otherwise than as stated, did possess, keep, own, set up operate, or conduct, or did permit to be set up, operate, or conducted, a gambling device, contrary to law."

Without objection, by demurrer or otherwise, the defendant went to trial on said indictment, and on the trial, was, by the verdict of the jury, found guilty "as charged in this indictment" and his fine fixed at $172.

The judgment of conviction was entered upon said verdict, and he was sentenced to hard labor for payment of the fine and costs.

On his appeal the Court of Appeals reversed, on the authority of Likos v. State, Ala.App., 182 So. 81, holding that a like indictment was void and would not support the judgment of conviction.

The opinion of the court in the Likos Case was rested on Raisler v. State, 55 Ala. 64; Mehaffey v State, 16 Ala.App. 99, 75 So. 647; Dowdy v. State, 22 Ala.App. 514, 117 So. 489, and Slater v. State, 230 Ala. 320, 162 So. 130.

In Raisler's Case the court, speaking by Justice Stone, observed: "The indictment in this case is fatally defective, under section 3618 of the Revised Code [1867]. That section prohibits the sale of vinous or spirituous liquors in quantities less than a quart, without license. The present indictment is framed in the disjunctive, and charges that the defendant 'sold, bartered, exchanged, or otherwise disposed of, * * vinous, or malt liquors,' etc. Several of these disjunctive averments charge no offense known to the law. The indictment thus charges that the defendant did one of several acts, many of which are not indictable under the statute. A disjunctive averment in pleading, to be sufficient, must, in each of its alternative phases, charge an indictable offense." Andrews & Bros. v. McCoy, 8 Ala. 920, 42 Am.Dec. 669; Lucas v. Oliver, 34 Ala. 626; David v. Shepard, 40 Ala. 587.

It is due to the circuit judge that we should say, the sufficiency of the indictment does not appear to have been brought to his attention.

The Court of Appeals (the writer being the author of the opinion as judge of that court) in Mehaffey v. State, supra, and Collins v. State, 17 Ala.App. 186, 84 So. 417, followed the Raisler Case, holding that it was the duty of the court on appeal to notice the defects in the indictment, though no objection thereto had been made on the trial. This court, reviewing the Collins Case on certiorari, in Ex parte State, State v. Collins, 200 Ala. 503, 76 So. 445, overruled Raisler v. State, supra, and reversed the Court of Appeals.

The effect of that decision was to disapprove the holding in Mehaffey's Case.

Notwithstanding the overruling of the Raisler Case, the Court of Appeals in the subsequent case of Dowdy v. State, supra, again cited with approval the Raisler and Mehaffey Cases. That is not to say that the Dowdy Case was not correctly decided, but merely to note that the Court of Appeals undoubtedly overlooked the fact that Raisler v. State, supra, had been overruled.

The language of section 3 of the act under which the indictment was drawn, is: "That it shall be unlawful for any person, firm, corporation or association of persons, within this State, to possess, keep, own, set up, operate, or conduct, or permit to be set up, operated, or conducted, any gambling device prescribed in Section 1 of ...