Kelley v. State
| Decision Date | 05 May 1911 |
| Citation | 55 So. 141,171 Ala. 44 |
| Parties | KELLEY v. STATE. |
| Court | Alabama Supreme Court |
Appeal from Coffee County Court; J. N. Ham, Judge.
Jack Kelley was convicted of selling intoxicating liquors, and he appeals. Reversed and remanded.
The indictment charges that Jack Kelley sold spirituous, vinous or malt liquors without license and contrary to law, against the peace and dignity of the state of Alabama. Demurrer A is that the indictment was found at the fall term, 1909, of the circuit court of Coffee county, and filed in said court on September 24, 1909, and alleges and charges that the defendant sold spirituous, vinous, or malt liquors without a license and contrary to law, but fails to aver further that said offense was committed by defendant before January 1 1909, the date on which the state-wide prohibition law went into effect in Coffee county, and said indictment does not allege any offense against the prohibition laws of Alabama which went into effect in said county on January 1, 1909, and the defendant says that the failure to allege in said indictment the time of the commission of said offense, and whether said sale or sales were made before January 1, 1909 or thereafter, renders said indictment totally defective and void.
J. A. Carnley, for appellant.
R. C. Brickell, Atty. Gen., for the State.
The indictment was in Code form (No. 100), and which is made sufficient under section 7353 of the Code of 1907 for a violation of the prohibition law. It is not for carrying on a business without a license, and does not fall within the influence of the case of Badgett v. State, 157 Ala. 20, 48 So. 54. Nor is it in the form held bad in the case of Cost v. State, 96 Ala. 60, 11 So. 435, but conforms to the count held sufficient in said last case.
The indictment was returned at the fall term, 1909, and would cover a violation of the law 12 months previous thereto, and ordinarily it is not necessary to aver the time the offense was committed, unless it be that time is of the essence of the offense; but, when it is, it must be averred and proved. Marks v. State, 159 Ala. 88, 48 So. 864, 133 Am. St. Rep. 20; Glenn v. State, 158 Ala. 44, 48 So. 505, and cases there cited.
The state-wide prohibition law did not become effective in Coffee county until January 1, 1909, less than 12 months before the indictment was found, nor was there a local prohibition law covering the entire county. Acts ...
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Carroll v. State, 8 Div. 833
...Section 15-8-23 (1975). The indictment was not indefinite and vague because it failed to state the date of the offense, Kelley v. State, 171 Ala. 44, 55 So. 141 (1911), Williams v. State, 348 So.2d 1101 (Ala.Cr.App.), cert. denied, Ex parte Williams, 348 So.2d 1105 (Ala.1977), Alabama Code ......
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Armstrong v. State ex rel. Embry
... ... of procedure is concerned the holding has been, in accordance ... with the language of the statute, that the indictment or ... affidavit which substantially follows its provisions is ... sufficient. See Fitzpatrick v. State, 169 Ala. 1, ... 53, So. 1021; Kelley v. State, 171 Ala. 44, 55 So ... 141; Noltey v. State, 225 Ala. 584, 144 So. 457 ... 'An indictment in broad language was held to be ... sufficient.' Holt v. State, 238 Ala. 2, 193 So ... Clearly, so far as the question of pleading is concerned, ... there is no basis for a ... ...
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