McReynolds v. State

89 So. 825, 18 Ala. App. 173, 1921 Ala. App. LEXIS 145

Opinions

There were two counts in the indictment. The first count charged a violation of the act approved January 25, 1919 (Laws 1919, p. 6), prohibiting distilling, etc. which act changed a misdemeanor into a felony, making the date at which the act went into effect a necessary averment. Howard v. State,86 So. 172.¹ The second count charged a violation of an act approved September 30, 1919 (Acts 1919, p. 1086). This act created a new crime, by prohibiting the possession of certain articles which therefore had not constituted an offense. This act did not go into effect until 60 days after its approval, thereby making it become effective November 30, 1919. The indictment in this case was returned into court November 5, 1920, and by its terms charged the commission of the offense, within a period of time from September 30 to November 30, 1919, before the finding of the indictment, during a part of which period covered by the charge, the act charged in the indictment was not a violation of law.

Under the rule the pleading must be construed most strongly against the pleader. The indictment must cover such period only during which the act charged was a violation of law. Glenn v. State, 158 Ala. 44, 48 So. 505.

The demurrer to the second count of the indictment should have been sustained, and for this error the judgment is reversed, and the cause is remanded.

Reversed and remanded.

On Rehearing. The application for rehearing is granted. The original opinion is withdrawn, and opinion substituted. The judgment of affirmance is set aside, and judgment reversed, and cause remanded.

¹ 17 Ala. App. 464.