Norvell v. State

50 Ala. 174

• Court: Supreme Court of Alabama
• Decided: January 15, 1874
• Status: Published

Opinion

B. F. SAFFOLD, J.

Two offences are charged in the indictment, which belong to the same family of crimes, and are of the same general nature. But that in the first count is punishable by fine, not exceeding five hundred dollars, and imprisonment in the county jail, for not more than one year; while the other is punished by fine only, not less than twenty, nor more than one hundred dollars. In this State, the law seems to be plain, that indictments for misdemeanors may charge, in several counts, different kindred offences, the punishment of which is the same ; but, if the punishment is not the same, the indictment is bad. The State v. Covy, 4 Porter, 186; The State v. Coleman, 5 Porter, 32. That the punishment differs in the degree of severity, is not considered an objection. Johnson v. The State, 29 Ala. 62. Imprisonment and fine are :not punishments of the same nature. The court erred in not quashing the indictment, on the defendant’s motion to that effect. Mayo v. The State, 30 Ala. 32; 1 Bishop’s Crim. Pro. § 206.

Whether the Tallassee Manufacturing Company, which caused the paper to be issued, was benefited by its use, was an immaterial and irrelevant inquiry. The injury resulting to the public is the ground of prohibiting the circulation of change-bills. Fry’s testimony on this point was properly rejected.

The other exceptions taken by the defendant to the rulings of the court on questions of evidence, as well as in the matter of charges given and refused, may be considered generally. Section 3643 of the Revised Code forbids any person, private corporation, or association, to make, emit, sign, or countersign, without authority of law, any paper to answer the purposes of money, or for general circulation ; or to cause or procure the same to be done. Section 3644 forbids any person to pass or circulate, in tbis State, any paper issued without authority of law, to answer the piirposes of money. In a prosecution under either of these sections, it would be wholly immaterial what appellation was given to the paper as described in them ; or to what extent it was circulated, whether among the operatives in a factory, or in the surrounding country; or wbat considerations of convenience prompted its making, issue, or circulation. Of course, there must be an intention to do the thing forbidden; but this intention is not to be avoided, by mere indifference, refusal-to think, or mechanical compliance with the orders of some other person.

The judgment is reversed, and the cause remanded.