Bruce v. State

97 So. 373, 19 Ala. App. 368, 1923 Ala. App. LEXIS 207

• Court: Alabama Court of Appeals
• Decided: July 10, 1923
• Docket: 4 Div. 881.
• Status: Published

Opinion

BRICKEN, P. J.

There is a misjoinder in-the counts of the indictment. Count 1 charges a misdemeanor; count 2 a felony. The indictment, as shown by the record, reads as-follows:

“Count 1. The grand jury of said county charge that, before the 25th day of January. 1919, Donie Bruce, alias Donie Thomas, did distill, make, or manufacture alcoholic o-r spirituous liquors or beverages contrary to law. (Italics ours.)

“Cotmt 2. The grand jury of said county further charge that, before the finding of' this indictment, and since the 1st day of December, 1919, Donie Bruce, alias Donie Thomas, did have in his possession a still, apparatus, or appliance to be used for the purpose of manufacturing alcoholic or spirituous liquors or beverages, contrary to law, against the peace and dignity of the state of Alabama.”

The jury returned a verdict of “We, the jury, find, the defendant guilty under count 1.” This, of course, operated as an acquittal of the charge contained in count 2 of the indictment.

As stated count 1 charged an offense which, under the «statute of 1915 (Acts 1915, p. 2, § 3) was a misdemeanor. As will be noted, this count charged that the alleged offense was committed before the 25th day of January, 1919, etc. This averment may be, and possibly is, a misprision; but certainly we are to pass upon the indictment as presented to ús by the record. The indictment was returned into open court, and filed therein on the 2d day of May, 1922, and count 1, charging a misdemeanor, as it did, was upon its face barred by the statute of limitations of 12 months (Gode 1907, § 7347), and the verdict rendered thereon will not support a judgment of conviction.

Moreover, the court, in passing sentence on this defendant, imposed a term of imprisonment in the penitentiary of not less than 13 months or more than 14 months. The offense of which this defendant was convicted being a misdemeanor, such penitentiary sentence was unauthorized and void. Code 1907., § 6756.

If the first count of the indictment had charged the offense to have been committed after (or since)' January 25, 1919, which it was doubtless intended to do, it would have properly charged the felony now prescribed by statute for distilling, making, or manufacturing the prohibited liquors designated. Acts 1919, p. 6, § 15. However, the time limit of 3 years since the adoption o’f the statute supra having run, there is now no necessity of averring in an indictment the alleged date of the commission of this offense, as time is no longer a material ingredient of the offense, and an averment in an indictment of this character of offense under the terms of section 7139 of Code 1907 would meet every requirement. Section 7139, supra, reads':.

“It is not necessary to state the precise time at which the offense was committed; but it may be alleged to have been committed on any day before the finding of the indictment, or generally before the finding 'of the indictment, unless time is a material ingredient of the offense.”

The period of time covered by an indictment for distilling, making, or manfaeturing prohibited liquors, or for the unlawful' possession of a still, etc., is 3 years; and, as 3 have elapsed since the passage of these acts (Acts 1919, p. 16, § 15; Acts 1919, p. 1086), time is no longer an ingredient of the offense, and it is sufficient to now use the general averment “before the finding of the indictment.”

The opinion formerly rendered in this case is withdrawn, and this opinion substituted therefor. The jury by its verdict having acquitted the defendant of the charge contained in the second count of the indictment, and as there can be no'conviction of the defendant upon count 1 thereof, an order is here issued reversing the judgment appealed from, and discharging the defendant from further custody in this proceeding.

Reversed and rendered.