McMullen v. State

• Decision Date: 15 June 1920
• Docket Number: 8 Div. 717
• Citation: 86 So. 175,17 Ala.App. 504
• Parties: McMULLEN v. STATE.
• Court: Alabama Court of Appeals

86 So. 175

17 Ala.App. 504

McMULLEN v. STATE.

8 Div. 717

Court of Appeals of Alabama

June 15, 1920

Appeal from Circuit Court, Lauderdale County; C.P. Almon, Judge.

Memory McMullen was convicted of manufacturing prohibited liquors and he appeals. Reversed and remanded.

Simpson & Simpson, of Florence, for appellant.

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

BRICKEN P.J.

The indictment does not show authentication as provided by Code 1907, § 7300, which reads:

'The concurrence of at least twelve grand jurors is necessary to find an indictment; and when so found it must be indorsed 'a true bill,' and the indorsement signed by the foreman."

The indictment, under the laws of this state, is an indispensable constituent of the record; and before a defendant can be arraigned and put on his trial for a felony, the record must disclose an indictment that it is the finding of a grand jury, duly organized in the mode prescribed by law, and by them returned into and accepted by the court, and it is necessary for its proper authentication that it shall bear the indorsement "A true bill," which indorsement must bear the signature of the foreman of the grand jury, and it must be presented into open court in the presence of at least 12 grand jurors, including the foreman, and must be indorsed "filed," and the indorsement dated and signed by the clerk of the court. Code 1907, §§ 7300, 7152. When these indorsements are made, it is legal evidence of the finding and return of the grand jury. Wilson v. State, 128 Ala. 17, 29 So. 569. In the instant case, the indictment does not bear the necessary indorsement, "A true bill;" hence there was no proper authentication thereof.

The purported indictment contained in this record is void for another reason. The defendant was indicted under section 15 of the act approved January 25, 1919 (Acts 1919, p. 16), for the suppression of intemperance, etc., the act being known generally as the "Weakley Bone Dry Law."

The indictment contained only one count, and is as follows:

"The grand jury of said county charge that, before the filing of this indictment Robert Rinks and Memory McMullen made or manufactured, or was engaged in making or manufacturing, spirituous, vinous, or malt liquors contrary to law, against the peace and dignity of the state of Alabama."

The words "before the filing," instead of "before the finding," of this indictment, might be treated as a clerical misprision. The indictment was void for uncertainty in not stating either the time of the commission of the alleged offense, or that it was committed since the adoption and approval of the act, to wit, January 25, 1919, the date upon which the act became operative under its terms.

The identical question appeared in the case of Burrell Howard v. State (April 13, 1920) 86 So. 172. In that case this court said:

"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 those 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

...