Burt v. State

48 So. 851 | Ala. | 1909

McCLELLAN, J.

in Wooster v. State, 55 Ala. 217, it was ruled that objection for misjoinder of offenses constituting misdemeanors could not be taken by demurrer. In felonies, an essential element, among others, to justify joinder in different counts, is that the offenses belong to the same family of crimes. That rule does not prevail with respect to misdemeanors. — Wooster’s Case, supra.

The indictment contained one count charging the use of abusive, etc., language in the presence of a female (Code 1896, § 4306), and three counts purporting to charge a violation of what is commonly called the “Anti-Boycott Act,” in that the defendant interfered by threats with the occupation of Miss Le Beau. Prom the bill it appears that the testimony for the state tended to show that the defendant, in threatening Miss Le Beau with the hostility of labor unions and the destructiion of her business or occupation, wherever she was, if she taught persons the art of operating Mergenthaler lino-type machines, used language forbidden by the statute. The principle has been long settled in this, state that for a single act, though it violates one or more penal statute, there can be but one conviction of the offender.—Hurst v. State, 86 Ala. 604, 6 South. 120, 11 Am. St. Rep. 79; Walkley v State, 133 Ala. 183, 31 South. 854; Jackson v. State, 136 Ala. 96, 33 South. 888; Gunter v. State, 111 Ala. 23, 20 South. 632, 56 Am. St. Rep. 17; O’Brien v. State, 91 Ala. 23, 8 South. 559. Untreinor v. State, 146 Ala. 133, 41 South. 170, and Schrutchings v. State, 151 Ala. 1, 43 South. 962, are not in conflict with the principle stated, since the effect of a single act was not involved therein, nor considered. We interpret the testimony, if credited with disfavor to the defendant, who denies its truth, as making a case within the principle above stated.

The judgment adjudges the guilt of the defendant of both a violation of the abusive, etc., language statute and the “anti-boycott act” in the respect indicated, and this consequent upon the finding of the jury that the defendant was “guilty as charged in the indictment, and further find the defendant to be fined $137.” As clearly appears, the verdict is referred by the jury to both charges; and the amount of the fine assessed must be likewise referred to the conclusion of guilt under both charges. It results, on this phase of the case, that the judgment is erroneous, and a reversal must be entered.

In such cases as this the jury should be instructed, if they are convinced to the requisite degree of the defendant’s guilt of one or more of the offenses resulting from the single act of the defendant, to mold their verdict so as to declare their conclusion of his guilt of one of the offenses with which he is charged. In such cases, if this be not done, and a general verdict of guilty as charged in the indictment is rendered, necessarily a defendant, the judgment following the verdict, would suffer two punishments for one single criminal act.

But the right to require an election by the state, in canes where, as here, the single act may have violated two or more statutes, does not. exist, for the reason that the purpose to be conserved by an election for which offense the state will seek a conviction is to protect the defendant from his prosecution for two or more like offenses (misdemeanors) under one count of an indictment. Where the criminal act is single, and the counts of the indictment charge the violation of two or more statutes by that single act, or where the proof discovers that condition, the office of election is not present.— Scrutchings v. State, 151 Ala. 1, 43 South. 962.

Since a reversal results, we pretermit decision of the questions raised as to the constitutionality of the “anti-boycott law.” However, for tbe purpose of another trial, we will pass upon tbe sufficiency of counts 2, 3, and 4 as against the demurrers to them on that score only. The second count is, in our opinion, sufficient. That count follows the language of section 4 of the “anti-boycott act” (Gen. Acts 1903, p. 282), except it omits the words “at any place he or she sees fit.” The demurrer takes this point. We think the quoted words are pure surplusage, since the offense is fully described by the -'language employed in the section preceding the quoted words, and the quoted words neither expand nor contract the description anteceding them. We apprehend, however, that as a matter of proof, in order to justify a conviction under this section, some evidence of a legal character must be adduced tending to establish that the party against whom the “force, threats or other means of intimidation” were directed, to prevent such person from engaging in any lawful occupation, was either engaged in a lawful occupation or purposed to enter thereupon. If one threatened, etc., as the section defines, was not then engaged in a lawful occupation, and purposed no engagement in an occupation of any kind, the intent of this section, consistent as it is with the general intent of the whole act, would not be met, because the section undoubtedly contemplates only the protection of a person in the pursuit of any lawful occupation, whether already actually entered upon or not, and does not contemplate the creation of an offense by the mere act or conduct embraced in the “force, threats or other means of intimidation” described in the section. The elements must, of course, be present in the premises to constitute the offense; but the additional elements must be also present, viz.: First, that the person against whom the acts or conduct are directed must be engaged in a lawful occupation, or purpose such an engagement, though not actually entered upon; and, second, the acts or conduct employed against such a person must have reference to the prevention of such an engagement or pursuit of a lawful occupation.

From these considerations it results that counts 2, 8, and 4 are not subject to the grounds of demurrer attacking them for insufficiency.

The judgment is reversed, and the cause is remanded.

Tyson, C. J., and Simpson, Anderson, and Mayfield, JJ., concur.