DEAN v. STATEDEAN v. STATE
- Reporters:
- , ,
- Before:
- Samford (en banc) (per curiam)
It would be illogical that this court presume error, in defendant‘s favor, contrary to the established rules of presumption, when—if the fact of a first and only conviction were seriously contended—the matter could have been brought to the attention of the lower court and thus preserved for review by this court, by proper motion in that court seasonably presented. Such would be orderly procedure as well as fairness to the sentencing court and the defendant, and harmonious to established law.
The contention of appellant is therefore without merit and the judgment below is affirmed.
Affirmed.
Mulkey & Mulkey, of Geneva, for appellant.
Thos. S. Lawson, Atty. Gen., and Francis M. Kohn, Asst. Atty. Gen., for the State.
The indictment was in three counts. To the first count the defendant interposed demurrer, which, being confessed by the State, was sustained; thereby eliminating the first count of the indictment, making it unnecessary for us to pass upon any question solely on the first count.
The second and third counts were as follows:
“Count 2. The grand jury of said county further charge that before the finding of this indictment that Arlin Dean and Clarence Deal, willfully or with intent to charge, injure or defraud the insurer set fire to the following described personal property: one 1937 Ford Sedan Automobile, the property of the said Arlin Dean, which property was at the time insured against loss or damage by fire.
“Count 3. The grand jury of said county further charge that before the finding of this indictment that Arlin Dean and Clarence Deal willfully set fire to, or burned or caused to be burned, or aided or procured the burning, an automobile, to-wit: one 1937 Ford Sedan Automobile, of the value of twenty-five dollars or more, the property of Arlin Dean; or with intent to defraud, set fire to or burned, or caused to be burned, or aided or procured the burning of an automobile, to-wit: one 1937 Ford Sedan Automobile, the property of the said Arlin Dean, against the peace and dignity of the State of Alabama.”
To these two counts defendant interposed demurrer, taking the point that there is no allegation in the counts that the offense charged was committed subsequent to November 9, 1927, and it does not appear that the offense charged was committed at a time when the same constituted arson in the third degree.
Prior to the passage and approval of Section 3293 of the
Under our Statute there is no limitation upon prosecution for arson. Prosecution for arson may be prosecuted without time limit.
We therefore have an indictment charging an act which prior to September 9, 1927, was not a violation of any law, and an act which after September 9, 1927, became arson in the third degree. It appears therefore that the defendant is
The Attorney General directs our attention to the case of Burdette Holt v. State, Ala.Sup., 193 So. 101,1 granting a writ of certiorari to this Court in the case of Holt v. State, ante, p. 100, 193 So. 98.
The principle announced in the Holt case, supra, is based upon a very different state of facts. It is held in the Holt case, supra, that the “Alabama Beverage Control Act“, becoming operative, furnished due notice, or information, to the defendant of what he was called upon to defend in the court having jurisdiction of the matter and his person. In other words, the enactment of the “Alabama Beverage Control Act” gave due notice to the defendant of the time when the Statute under which he was being prosecuted became a law, rendering a mere specific allegation unnecessary. In the instant case there is no such notice.
Time being a material ingredient of the offense charged, there could have been no conviction under this amended Code until after September 9, 1927, for that reason, prior to that time the acts here charged would not have been a crime.
It was the contention of the State that the defendant burned his own automobile for the purpose of defrauding the insurer, and in order to prove the existence of a policy on the car that was burned the State sought to prove by its witness S. G. Wilkins the contents of the policy of insurance without demand having been made on the defendant for the production of the original policy either before the trial or during the trial. We think the court committed error in permitting oral testimony as to the contents of the policy of insurance without a demand first having been made on the defendant to produce it.
In Medley v. State, 25 Ala.App. 35, 140 So. 184, 185, this Court said: “It is the law that secondary evidence of the contents of a paper will not be received in evidence over timely and proper objection until the absence of the original has been accounted for, and, when the paper is in the possession of the defendant in a criminal case, proper demand must have been made upon him to produce the document.” Wiley v. State, 16 Ala.App. 93 [75 So. 641]; Jernigan v. State, 81 Ala. 58 [1 So. 72]; Sims v. State, 155 Ala. 96 [46 So. 493]; Nailer v. State, 18 Ala.App. 127 [90 So. 131]; Snyder v. State, 78 Miss. 366 [29 So. 78].
Other questions presented in this record will probably not arise on another trial, but for the errors pointed out, the judgment is reversed and the cause is remanded.
Reversed and remanded.
Note.—PER CURIAM. The foregoing opinion was prepared by the late Judge SAMFORD. Since his untimely death, this court has considered this case en banc. We are clear to the conclusion that said opinion is correct in all things; therefore, it is hereby approved and is made and adopted as the opinion of this court.
PER CURIAM.
Affirmed on authority of Dean v. State (Sup.Ct. 4 Div. 145) 197 So. 53.