Shiflett v. State

Decision Date11 August 1953
Docket Number3 Div. 959
Citation67 So.2d 284,37 Ala.App. 300
PartiesSHIFLETT v. STATE.
CourtAlabama Court of Appeals

J. B. Atkinson, Clanton, for appellant.

Si Garrett, Atty. Gen., and Robt. P. Bradley, Asst. Atty. Gen., for the State.

The following charge was refused to defendant:

20. The court charges the jury that if after looking at all the evidence in this case and considering it fully, your minds are left in such a state of uncertainty that you cannot say beyond a reasonable doubt that the defendant is guilty of the offense charged, then this is such a doubt as would entitle the defendant to an acquittal and you should so find.

HARWOOD, Judge.

This appellant has been convicted of a violation of our narcotic laws, Chapter 8, §§ 232-255, Title 22, Code of Alabama 1940.

The indictment against the appellant contained eight counts.

Four of these counts, omitting the formal parts, charge that on or about the 28th day of March 1952 the appellant did possess opium contrary to law; two of the counts charge possession of a narcotic drug on or about 28th day of March 1952, contrary to law, and two counts charge possession of morphine, on or about 28th day of March 1952, contrary to law.

A demurrer, supported by numerous grounds, was filed to the indictment, and by the court overruled.

In our opinion the ruling on the demurrer to the indictment was proper.

The offense was clearly, directly, and expressly alleged in each count. Particularly is this true in view of Section 232, supra, which defines 'Narcotic Drugs' as meaning 'coca leaves, opium, cannabis, and every substance neither chemically nor physically distinguishable from them'; that 'opium' includes morphine, codeine, and heroin, and any compound, derivative, or mixture of opium.

Nor was the indictment defective in failing to aver that the offense was committed subsequent to 9:35 A. M., July 27, 1951, the effective date of an amendment to Section 255, supra, making a violation of our narcotic laws punishable as a felony rather than as a misdemeanor as it formerly had been.

Ordinarily it is not necessary to state in an indictment the precise time at which the offense was committed, unless time is a material ingredient of the offense. Section 237, Title 15, Code of Alabama 1940.

Where, however, an indictment is for a new offense, or when the grade of an offense has been raised from a misdemeanor to a felony, and covers a period both when the act was and was not an offense, or where it was of a lesser grade, it is defective upon appropriate demurrer if it fails to aver the time of the commission of the alleged offense. Bibb v. State, 83 Ala. 84, 3 So. 711; Howard v. State, 17 Ala.App. 464, 86 So. 172; Holt v. State 238 Ala. 219, 193 So. 101. This for the reason that under such circumstances time is a material ingredient of the offense.

However in the present indictment, the offense, in each count, was averred as having been committed 'on or about the 28th day of March, 1952.'

The better practice would have been to aver that the offense was committed subsequent to the effective date of the amendment.

However the common understanding of the words 'on or about' a certain date is that such words do not put the date at large, but indicate that it is stated with approximate accuracy. Rinker v. U. S., 8 Cir., 151 F. 755, 81 C.C.A. 379.

If it be argued that because the day specified was so near the end of March that it could be reasonably interpreted as meaning some day in the early part of April, such construction would only indicate that the offense was one month subsequent to the enactment of the amendment than that alleged.

This aside, the time of the commission of the offense is definitely averred as being in the year 1952. Any day in this year would be subsequent to the effective date of the amendment, and thus definitely informed the accused that the offense was allegedly committed subsequent to the date of the amendment, and if found guilty his act would be a felony and not a misdemeanor. U. S. v. McKinley, 127 F. 168, 171.

Nor is the indictment defective because of its failure to aver that the accused was not within the exceptions or provisos of the act permitting certain professional persons, and licensed dealers, and others, to possess narcotics.

It is unnecessary in an indictment to allege that the party charged is not within the exceptions or provisos of an act creating the offense, for such matter is defensive. Newby v. State, 21 Ala.App. 353, 108 So. 272.

Upon the demurrer to the indictment being overruled the defendant filed pleas of former jeopardy, and autrefois acquit.

Upon the filing of this plea the record shows the following:

'The Court: The Court is informed of that. The Court denies the plea. I tried the other case.

'Mr. Atkinson: The judgment of the Court will be we filed a plea of former jeopardy--of course, the Court denies the plea and doesn't permit me to offer proof?

'The Court: I will let you go into that. If you want any proof, I will be glad to submit it.

'Mr. Atkinson: We want to introduce the file and evidence of the former trial and submit it to the Court.

'Your Honor holds you will try the plea, or the jury?

'The Court: Hold I will try it.'

Thereafter the defendant introduced in support of the pleas the entire file of prior trial, and also a transcription of the evidence and proceedings at such prior trial.

These papers show that this appellant was originally indicted for possessing 'tincture of opium;' that in the first trial Dr. Rehling, the State Toxicologist, testified that a 'tincture of opium' was opium dissolved in alcohol, and that the substance in the bottle found on appellant could not be called a tincture of opium, but only the boiled residue of tincture of opium, and in the state in which the substance was turned over to him it was a 'water suspension of opium,' the alcohol having been evaporated in the boiling process.

At the conclusion of the State's evidence in the first trial the defendant moved to exclude the State's evidence. The court announced that 'it looks like he has been indicted for the wrong thing,' and granted the motion, but at the request of the Solicitor directed that the defendant be continued to be held under the same bond for action of the next grand jury.

Ordinarily, an issue of former jeopardy, either of acquittal or conviction should be tried separately and in advance of the issue of not guilty. Parsons v. State, 179 Ala. 23, 60 So. 864. Technically therefore the court below acted improperly in determining the issues raised by the pleas of jeopardy. But, as stated by the late Chief Justice Gardner when considering a question similar to the one now before us, 'to have a reversal of a judgment of conviction there must not only appear error, but such error as is prejudicial to the substantial rights of the party.' See Mikell v. State, 242 Ala. 298, 5 So.2d 825, 827.

Where, as in this case, a defendant moves to exclude the evidence on the theory of a variance between the averments of an indictment and the proof submitted, and invokes a ruling in...

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23 cases
  • Cade v. State
    • United States
    • Alabama Court of Criminal Appeals
    • June 10, 1986
    ...indictment the precise time at which the offense was committed. Kelley v. State, 409 So.2d 909, 912 (Ala.Cr.App.); Shiflett v. State, 37 Ala.App. 300, 67 So.2d 284 (1953); Ala. Code § 15-8-30 (1975). We find none of the exceptions to the general rule applicable to appellant's "In Deep v. St......
  • Billups v. City of Birmingham
    • United States
    • Alabama Court of Criminal Appeals
    • October 3, 1978
    ...a plea of former jeopardy without a jury, the trial court may take judicial cognizance of its own records. Shiflett v. State, 37 Ala.App. 300, 67 So.2d 284 (1953). However where the issue presented by the plea is only a matter of law, the judge need not submit that issue to the "When the pl......
  • Coleman v. State
    • United States
    • Alabama Court of Criminal Appeals
    • November 1, 1983
    ...prejudiced in his substantial rights by the action of a court in denying such plea without submitting it to the jury. Shiflett v. State, 37 Ala.App. 300, 67 So.2d 284." Inman v. State, 39 Ala.App. 496, at 104 So.2d 448, at 450 A plea of former jeopardy is without merit unless the offense pr......
  • Pratt v. State
    • United States
    • Alabama Court of Criminal Appeals
    • June 30, 1972
    ...jeopardy without submitting it to the jury. The situation thus presented by this record is therefore controlled by Shiflett v. State, 37 Ala.App. 300, 67 So.2d 284, where this Court, per Harwood, J., 'Ordinarily, an issue of former jeopardy, either of acquittal or conviction should be tried......
  • Request a trial to view additional results

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