Spears v. State

• Decision Date: 26 March 1935
• Docket Number: 7 Div. 73
• Citation: 26 Ala.App. 376,160 So. 727
• Parties: SPEARS v. STATE.
• Court: Alabama Court of Appeals

160 So. 727

26 Ala.App. 376

SPEARS v. STATE.

7 Div. 73

Court of Appeals of Alabama

March 26, 1935

Appeal from Circuit Court, Etowah County; Woodson J. Martin, Judge.

Thomas Noel Spears was convicted of assault and battery, and he appeals.

Appeal dismissed.

RICE J., dissenting

Culli &amp Culli, of Gadsden, for appellant.

A.A Carmichael, Atty. Gen., for the State.

BRICKEN, Presiding Judge.

This appeal is from a purported judgment of conviction for the offense of assault and battery, a misdemeanor. The offense complained of grew out of a difficulty between this appellant and one Simon P. Benson, the alleged injured party. It affirmatively appears that said difficulty between the above parties took place at their home on April 12, 1930. It is without dispute that this prosecution was not commenced until the indictment was found by the grand jury and returned into open court on March 3, 1932, and the capias or writ of arrest was issued on that day; which, as will be seen, was nearly two years after the alleged commission of the offense. The indictment charged the appellant with the offense of assault with intent to murder.

By the verdict of the jury, supra, the accused was acquitted of the offense of assault with intent to murder; and, as it affirmatively appears, without dispute, that the statute of limitations had run as to the other offenses ordinarily included under the charge in the indictment, the charge of assault with intent to murder was the only actionable offense in this indictment. Under this status the court was wrong in charging the jury to the effect that this indictment included also the charges of assault and battery and assault, and that the jury would be warranted in finding him guilty of assault and battery, or an assault. The rule providing that every lesser offense is included in the one charged in the indictment applies and has reference only to every actionable offense and not the offenses which upon the face of the proceedings are barred by the statute of limitations, the operation of which rendered the court without jurisdiction to try and determine the so-called lesser offenses. In other words, the misdemeanor of which the defendant was convicted was not embraced in the major charge of assault with intent to murder. Nor could it have been as the running of the statute of limitations had rendered the charge unactionable. The time when an offense was committed need not be alleged in the indictment, but it is essential it must be proved on the trial that it was committed within the period, which is prescribed as a bar against the prosecution for it. If this is not done, the prosecution fails. Why? Because, when the period of limitation elapsed, the act ceased to be a punishable offense. No court was then authorized to pronounce sentence against the person who committed it. McDowell v. State, 61 Ala. 172. In said case the Supreme Court continued and said: "And presuming that every court having jurisdiction acts according to its duty in such a case,--the law considers its judgment as properly rendered upon the just verdict of a jury to whom the requisite evidence had been submitted with proper instructions--unless the contrary be shown by a bill of exceptions." As stated, the contrary clearly appears in this case.

In 3 Corpus Juris, p. 580, § 649, it is said: "Consent of parties cannot give a court jurisdiction over the subject matter of an action; and, therefore, the question of jurisdiction of the subject matter may, as a rule, be raised for the first time in the appellate court, or the court may on its own motion, take notice of such want of jurisdiction."

In Whorton's Case, 62 Ala. 201, Chief Justice Brickell, for the court, said: "The jurisdiction of a court over the subject matter is at all times open to inquiry, either on appeal or when the judgment rendered is collaterally assailed; and no consent, laches, or solicitation of the parties can cure such a defect."

Other authorities could be cited, but the foregoing appears conclusive upon the question.

The lower court acted without jurisdiction of the subject-matter; its purported judgment is therefore void and will not support an appeal. This appeal is accordingly dismissed, and, as no conviction of this appellant can be had or sustained in this proceeding, it is here ordered that he be discharged from further custody in this proceeding.

Appeal dismissed. Appellant discharged.

SAMFORD Judge (concurring).

I am concurring in the conclusion reached by the PRESIDING JUDGE for the following reasons: Where the bill of exceptions fails to disclose any evidence as to time or venue, circuit court rule 35 obtains, and the trial court will not be put in error for a refusal to give at the request of defendant the general charge unless the point is brought to the attention of the trial judge. This point has many times been decided by this court and the Supreme Court. Green v. State, 22 Ala.App. 536, 117 So. 607; Houk v. State, 21 Ala.App. 111, 105 So. 425; Harris v. State, 21 Ala.App. 67, 105 So. 389; McGrew v. State, 21 Ala.App. 266, 107 So. 328; Ray v. State, 25 Ala.App. 262, 145 So. 325; Webb v. State, 19 Ala.App. 359, 97 So. 246; McGee v. State, 20 Ala.App. 221, 101 So. 321; Morgan v. State, 20 Ala.App. 346, 102 So. 462.

In the instant case a very different proposition is presented. Here the evidence is without dispute that the difficulty resulting in the indictment for assault to murder occurred some two years before the beginning of the...