Richter v. State

Decision Date18 June 1908
Citation47 So. 163,156 Ala. 127
PartiesRICHTER v. STATE.
CourtAlabama Supreme Court

Appeal from Circuit Court, Cullman County; D. W. Speake, Judge.

Al Richter was convicted of selling intoxicating liquors contrary to law in Cullman county, and he appeals. Affirmed.

Cabaniss & Bowie, for appellant.

Alexander M. Garber, Atty. Gen., and J. B. Brown, for the State.

SIMPSON J.

The appellant in this case was convicted of the offense of selling spirituous, vinous, or malt liquors contrary to law in Cullman county. It is admitted that the liquor was sold and that the probate judge had issued a license to the defendant.

The first contention of the appellant is that the law was not complied with in the calling of the special term of the court at which he was tried. The statute requires 30 days' notice of such special term, etc., by advertisement in a newspaper, etc. Code 1896, § 915. It is admitted that the newspaper containing the notice was issued on January 4 1908, and the court was called to meet on February 3, 1908. The record shows that the issue of the newspaper was dated January 3, and that it was in fact distributed through the marts on January 4, 1908, and that the notice kept up in consecutive issues of the paper, to wit, on the 3d, 10th 17th, 24th, and 31st days of January, 1908. The rule of computation of time in this state is settled that the first day is excluded and the last day included (Code 1896, § 11), and it has been frequently held that the first day of the court is included in the 20 days required for the service of process. Garner v. Johnson, 22 Ala. 494; Thrower v. Brandon, 89 Ala. 406, 7 So. 442. The cases cited by counsel do not impinge upon this doctrine. When it is held that a decree pro confesso taken on the thirtieth day is a day too soon, it is the result of the same principle, to wit, that the law makes no note of fractions of a day. Any moment on that day is 30 days, and the defendant had every moment of that day within which to answer. Madden v. Floyd, 69 Ala. 222, 225. In the case of Pitfield v. Gazzam, 2 Ala. 325, one of the parties had not been served more than 22 days, and the decree was against both. In the case of City Council of Montgomery v. Adams, 51 Ala. 449, the party had the entire 6 days within which to claim his animal.

The rule is established in this and other jurisdictions that, when a notice of so many days is required before a certain thing is to be done, the first day is excluded and the last included, so that if the act be done on the last day it is sufficient. Wade on Notice §§ 1070, 1071; 49 L. R. A. 244, 248, note. In addition, our statute provides that, when time is specified in days, 4 weeks' notice is equal to 30 days. Code 1896, § 3043. The notice was sufficient for the calling of the special term of the court.

The error in the organization of the court in inserting January in place of February, when taken in connection with the date of the order calling the court and the date given in making the order for summoning the venire, is self-correcting. Hence there was no error in correcting it nunc pro tunc.

The next insistence of appellant is that the court erred in not sustaining the motion to quash the venire of the petit jury on account of the manner of drawing the same. The facts set up and proved did not show any fraud in the drawing of said jurors. Hence there was no error in the action of the court.

Code 1896, § 4997; Baker v. State, 122 Ala. 1, 26 So. 194; Thompson v. State, 122 Ala. 12, 19, 26 So. 141; Childress v. State, 122 Ala. 21, 31, 26 So. 162.

For similar reasons there was no error in the ruling of the court in regard to the organization of the grand jury. Code 1896, § 5269; Bluett v. State (Ala.) 44 So. 84, 88; Stoneking v. State, 118 Ala. 68, 71, 24 So. 47; Kitt v. State, 117 Ala. 213, 23 So. 485; Rodgers v. State, 144 Ala. 32, 40 So. 572; Sanders v. State, 148 Ala. 606, 41 So. 466. The case of Tucker v. State, 44 So. 587, does not militate against this proposition. While the first plea in abatement in this case does state, as in the case just cited, that the grand jury was not drawn in the presence of the officers designated by law, yet said first plea was not demurred to, but issue was taken on it, and the issue decided against the defendant; the facts not showing that the grand jury was not drawn in the presence of said officers.

There was no error in overruling the objection to the question to the witness Tucker, on cross-examination: "You say your object was to scatter the jury over the county?" nor in overruling the motion to exclude the answer thereto. Linnehan v. State, 120 Ala. 293, 298, 25 So. 6; Hurst v. State, 133 Ala. 96, 98, 31 So. 933.

With regard to the validity of the general prohibition law of the state (Laws 1907, p. 71), and its effect in those counties where an election had been held, on the subject of intoxicating liquors, this court has recently, after careful consideration, sustained the validity of said general prohibition law, and has distinctly held that the provisions of section 13 of said act, providing that the said law should go into effect on the 1st of January, 1908, in all counties in which an election shall have been held on or before the 12th day of December, 1907, does not require that said election shall be valid; the court saying: "It follows, we think, that the condition to the going into effect on January 1, 1908, of the state prohibition law in the counties * * * does not import more than an election--an expression of the popular will, which was had in both of the counties named. Hence whether the local option law be valid or invalid is not a vital inquiry." State v. Skeggs, 46 So. 268, 270. To what was said in that case it may be added that, if the election therein referred to meant a valid election under a valid law, the provision in the general law would be meaningless; for in that case prohibition would necessarily be already established in the counties referred to by virtue of the local option law, without any aid from the general prohibition law. This is persuasive to show that the object of referring to such election in section 13 was to cure any defects in the local option statute or in the steps attempted to be taken in pursuance thereof, and to base the going into effect of said law on January 1, 1908, merely upon the fact that the people of said locality had expressed their will by an election.

The appellant insists that said election was not held "under the provisions of the county local option law," first because the petition was not on one paper, but was on several papers, identical in wording, signed by different persons, making in the aggregate the number required. The statute does not require the petitioners all to sign one petition, but provides merely: "Upon the application of one-fourth of the qualified voters of any county in the state by petition in writing, signed by such qualified voters, addressed to the probate judges," etc. If each voter should write his own petition and sign it, that would be "one-fourth of the qualified voters" applying by petition. In the case referred to in California, the original petitions were not presented, but only one, with certain other signatures, purporting to have been cut from others, attached thereto. That court distinctly states, in the opinion, that "probably, if the several petitions as signed had been presented, they might and should be regarded and...

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9 cases
  • Montgomery v. State
    • United States
    • Alabama Court of Appeals
    • April 13, 1920
    ...v. State, 156 Ala. 62, 47 So. 52; Hurst v. State, 133 Ala. 96, 31 So. 933; Hays v. State, 155 Ala. 40, 46 So. 471; Richter v. State, 156 Ala. 127, 47 So. 163; Barber v. State, 11 Ala.App. 118, 65 So. Linnehan v. State, 120 Ala. 293, 25 So. 6; Thomas v. State, 150 Ala. 31, 43 So. 371; Carwil......
  • Stutz v. Cameron
    • United States
    • Missouri Supreme Court
    • January 3, 1914
    ...the last day is to be included, so that if the act is done or the event occurs on the last day, it is sufficient. 38 Cyc. 322-d; Richter v. State, 156 Ala. 127; Wilson Creditors, 55 Cal. 476; Misch v. Mayhew, 51 Cal. 514; Wahl v. Nauvoo, 64 Ill.App. 17; Page v. Weymouth, 47 Me. 238; Walsh v......
  • State v. Smith
    • United States
    • Iowa Supreme Court
    • November 22, 1913
    ...provided. The later cases seem to hold that the method of computing time applies to criminal, as well as civil, cases. Richter v. State, 156 Ala. 127 (47 So. 163); State v. Fleetwood, 143 Mo.App. 698 (127 S.W. 49 L. R. A. at 224, note). We see no reason why it should not be so. If the money......
  • Ex parte Register
    • United States
    • Alabama Supreme Court
    • June 19, 1952
    ...days or their equivalent are not used. Walton v. City of Mobile, 232 Ala. 200(3), 167 So. 247; Thrower v. Brandon, supra; Richter v. State, 156 Ala. 127, 47 So. 163; Foster v. State, ex rel. Stanford, 149 Ala. 632, 43 So. 179. In Garner v. Johnson, 22 Ala. 494, and Owen v. Slatter, 26 Ala. ......
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