Kelly v. State

55 So. 141, 171 Ala. 44, 1911 Ala. LEXIS 123

• Court: Supreme Court of Alabama
• Decided: May 5, 1911
• Status: Published

Opinion

ANDERSON, J.

The indictment was in code form (No. 100), and which is made sufficient under section 7353 of the Code of 1907 for a violation of the prohibition law. It is not for carrying on a business without a license, and does not fall within the influence of the case of Badgett v. State, 157 Ala. 20, 48 South. 54. Nor is it in the form held bad in the case of Cost v. State, 96 Ala. 60, 11 South. 435, but conforms to the count held sufficient in said last case.

The indictment was returned at the fall term, 1909, and would cover a violation of the law 12 months previous thereto, and ordinarily it is not necessary to aver the time the offense was committed, nnless it be that time is of the essence of the offense; but, when it is, it must be averred and proved.—Marks v. State, 159 Ala. 88, 48 South. 864, 133 Am. St. Rep. 20; Glenn v. State, 158 Ala. 44, 48 South. 505, and cases there cited.

The state-wide prohibition law did not become effective in Coffee county until January 1, 1909, less than 12 months before the indictment was found, nor wag there a local prohibition law covering the entire county. — ■ Acts Sp. Sess. 1907, p. 76, § 13. The present indictment covers time anterior to January 1, 1909, and was subject to defendant’s demurrer A, which the trial court erred in not sustaining.

The judgment of the county court is reversed, and the cause is remanded.

Reversed and remanded.

Dowdell, C. J., and Sayre and Somerville, JJ., concur.