Clark v. State

Jun 21, 1921

4 Div. 673.

Versions:90 So. 16

18 Ala. App. 217

1921 Ala. App. LEXIS 178

BRICKEN, P. J.

[1] Cоunt 5, of the indictment under which this defendant was convicted, was defective for the reason that it' covered а period of time when it was no offense against the law to commit the acts complained of therein. This count was based upon the statute passed by the Legislature during its 1919 session, Acts 1919, p. 1086, and was approved September 30, 1919. It contained no special provision as to its date of operation, and, it being a penal act, it therefore became operative and took effect ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍60 days after its approval, under thе provisions of section 7805, Code 1907. It therefore appears that the act took effect on Novеmber 30, 1919, and not September 30, 1919, as alleged. During the period of 60 days immediately after its approval which pеriod covered all the month of October, 1919, and also the month of November of that year up to .the 30th day thereof, the defendant could have committed every act charged or contained in count 5, without violаting any law of this state.

[2] The statute being a new one, creating the offense within the period ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍of time (three years) covered by the indictment, time there *218 fore was a necessary ingredient, and it was necessary to allegе that the offense was committed during the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍time covered by the indictment and in which the law was in operation or effective. McIntyre v. State, 55 Ala. 167; Bibb v. State, 83 Ala. 84, 3 South. 711; Dentler v. State, 112 Ala. 70, 20 South. 592. For it certainly cannot be questioned that when a statute makes an act punishable from and after a given day, the time of the alleged commission of the act is an essential ingredient of the offense to the extent ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍that it must be alleged in the indictment to have been committed after that day. This identical question has been so decided during the present term of this court. Stephen Isbell v. State, post, p. 223, 90 South. 55; McReynolds v. State, ante, p. 173, 89 South. 825.

[3] While this question is сonclusive of this appeal, and for that reason it would appear that nothing further need be said, yet a careful examination of the testimony as shown by the record fails to disclose any evidence whatever to sustain the verdict of the jury or the judgment of guilt rendered in this ease, nor is there' any evidence from which the guilt of the defendant could be inferred. Upon the trial of this case there was evidence showing that a still was found in a pasture, some considerable distance from this defendant’s house, and that a path led from defendant’s house down to a spring and on from there over a fence into the ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍pasture where the still was located. Some of the testimony showed that this path continued on by the still through and out of the pasture in the direction of other hоuses as near or nearer to.tlie still as the house of the defendant. The state’s witnesses testified only to these facts, and in addition thereto stated they did not know who owned or controlled the pasture or who was in pоssession of it, that they never saw the defendant there, and never found the still in his possession. To sum up the evidence offered by the state, a still was found about 200 yards from the defendant’s house, and a path led from his house to the still.

[4] The same rules of evidence apply in cases involving the violation of the prohibition laws in its several phases as it does in all other criminal cases, and there should be no differentiation in the application of these rules simply because the accused is charged with this character of offense. In the instaut casе there was no testimony showing, or even tending to show, that the path in question contained tracks of any kind, much less tracks that bore the slightest resemblance to any track made by defendant. In fact it was not shown that, the defendаnt had ever traveled or traversed the path in question. It was not shown that he owned, or had control or possession of the land upon which the still was found. In fact, the testimony of the state merely showed the still and the path and nothing more, and under no rules of evidence or measure of proof are such facts sufficient within themselvеs, or without more, to overcome or rebut the legal presumption of innocence which attends any оne accused of the commission of a criminal offense. It follows that the defendant was entitled to his dischаrge on the testimony of the state and the ruling of the court to this end was sought in nearly every conceivable manner by the defendant, and each of these rulings, denying the discharge of the defendant, was error, any of which would еffect a reversal of this case.^

The evidence as a whole, which includes that of the defendant and his witnesses shows affirmatively and without conflict that the land on which the still was found was not owned or controlled or evеn in the possession of the defendant. It shows further without dispute that the still in question was not that of the defendant or in his possession or control; the defendant himself testifying that he had never even seen the still, and did not know it 'was there. No tеstimony was offered to refute these facts, and it is difficult to understand how the jury from this evidence could ever conclude and so find that from the evidence in this case it was shown that beyond all reasonable doubt and to a moral certainty the defendant was. guilty as charged. Such a verdict, based upon evidence here offered, should not be suffered to stand. The court should have given the affirmative charge for defendant as requested, аnd should have ordered. his discharge from further custody. Failing in this, the judgment of conviction is reversed, and one here rendered in favor of defendant discharging him from further custody in this proceeding.

Reversed and rendered.

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