Laminack v. State

• Decision Date: 31 January 1922
• Docket Number: 7 Div. 773.
• Citation: 92 So. 502,18 Ala.App. 399
• Parties: LAMINACK v. STATE.
• Court: Alabama Court of Appeals

92 So. 502

18 Ala.App. 399

LAMINACK v. STATE.

7 Div. 773.

Court of Appeals of Alabama

January 31, 1922

Rehearing Denied Feb. 21, 1922.

Appeal from Circuit Court, Cleburne County; A. P. Agee, Judge.

Dewey Laminack was convicted of violating the prohibition law, and he appeals. Affirmed.

Certiorari denied 92 So. 920.

Tate &amp Logan, of Anniston, for appellant.

Harwell G. Davis, Atty. Gen., for the State.

BRICKEN P.J.

This appeal is upon the record, there being no bill of exceptions.

The indictment upon which the defendant was tried and convicted contains two counts as follows:

"The State of Alabama, Cleburne County. No. 12.

"Circuit Court, January Term, 1921.

"The grand jury of said county charges that before the finding of this indictment, Dewey Laminack, whose true name is to the grand jury unknown otherwise than as stated distilled, made, or manufactured alcoholic, spirituous malted, or mixed liquors or beverages, a part of which was alcohol.

"Second. The grand jury of said county further charge that before the finding of this indictment, Dewey Laminack, whose true name is to the grand jury unknown otherwise than stated, manufactured, sold, gave away, or had in his possession a still, apparatus, appliance, or device or substitute therefor, to be used for the purpose of manufacturing prohibited liquors or beverages, against the peace and dignity of the state of Alabama.

"J. B. Sanford,

"Solicitor Seventh Judicial Circuit."

This indictment was properly authenticated, and no contention is made or error insisted upon in this respect. Nor was the indictment challenged by demurrer or otherwise objected to in the lower court when this cause was there tried. But it is earnestly contended here that the indictment was rendered void by failing to aver the time of the commission of the alleged offense charged. And in support of this insistence appellant's counsel rely upon and cite the following cases, to wit: Howard v. State, 17 Ala. App. 464, 86 So. 172; Miller v. State, 16 Ala. App. 534, 79 So. 314; Weaver v. State (Ala. App.) 88 So. 362; Marks v. State, 159 Ala. 71, 48 So. 864, 133 Am. St. Rep. 20; Glenn v. State, 158 Ala. 44, 48 So. 505; Clark v. State (Ala. App.) 90 So. 16.

Each of these cases cited supra contain in our opinion correct propositions of law, and the decisions cited from this court are hereby reaffirmed and adhered to. These decisions would clearly sustain the contention of appellant's counsel if the same conditions had existed at the time of the trial of the case at bar which existed at the time the cases supra were tried in the several lower courts. But this is not true as to the first count of the indictment in the instant case for the reason that time was not a material ingredient of this offense when this indictment was found, which was true in each of the cases relied upon here. In other words, the indictment in each of the cases cited charged both a misdemeanor and a felony, the time in these indictments covered a period when the acts complained of under the statute was a felony and also a misdemeanor, and therefore for the reasons stated were obviously void for uncertainty. But here the first count of this indictment was good for the reason that at the time the indictment was found and returned into court by the grand jury it could not have charged the offense of a misdemeanor as such offense was on its face barred by the statute of limitations. To be more specific, the offense charged in the first count of this indictment was made a misdemeanor by the statute which went into effect at 11 o'clock p. m. on the 30th day of June, 1915. Acts 1915, pp. 1, 7. Under the statute approved January 25, 1919 (Acts 1919, pp. 6-17), the offense charged in this count was made a felony. It follows, therefore, that an indictment charging this offense, without alleging the time, charged both a misdemeanor and a felony during the first 12 months immediately subsequent to the approval of the 1919 act supra. But not so after the expiration of the 12 months immediately following January 25, 1919. As before stated after the expiration of the 12 months subsequent to January 25, 1919, an indictment of this character could charge a felony only, for...