Gratton v. State

59 So. 183 | Ala. Ct. App. | 1912

WALKER, P. J.

The indictment in this case Avas demurred to on the ground that “it charges no offense under the laws of Alabama.” Its language was such as to make it a sufficient charge of a violation of the general prohibition law which was in effect in Montgomery county within 12 months before it Avas found.—Scott v. State, 3 Ala. App. 142, 57 South. 413. The same language Avas appropriate to charge a violation of the law under which, as the result of an election held Avithin that period, the sale of spirituous, vinous, or malt liquors was permitted to be licensed in that county.— Code, § 7353; General Acts of Ala. 1911, pp. 249, 269, § 39.

As the act charged was a crime during the entire period Avhich is to be understood as covered by the indictment — during part of that period under one statute, and during the remainder of it under another statute— the rule requiring the date of the commission of the offense to be alleged when the law creating the only offense charged first became operative during the period covered by the indictment (Kelly v. State, 171 Ala. 44; 55 South. 141; Marks v. State, 159 Ala. 71, 48 South. 864, 133 Am. St. Rep. 20) does not apply, as the reason upon which that rule rests does not exist in such a case as the present one. It is not denied that the indictment was subject to demurrer, because of its failure to show for which of the two offenses covered by its averments it was intended to prosecute the defendant. But it was not upon any such ground that it was demurred to. We are not of opinion that it was subject to demurrer on the ground above quoted. The evidence offered against the defendant tended only to show his guilt of the offense charged under the law which was in effect at the time it was found, and the verdict finding him guilty is to be referred to the charge of an offense created by that law.

The exception to the portion of the court’s ora 1 charge to which the defendant first excepted cannot be sustained. There was no error in some of the propositions stated in that part of the charge. Unless the part of such a charge which is excepted to is faulty as a whole, the exception cannot be sustained.—Maxwell v. State, 3 Ala. App. 169, 57 South. 505.

The exception reserved to another part of the court’s oral charge cannot be sustained. The expression excepted to was in effect but a statement of the rule, applicable to misdemeanors, that accessories are not recognized, but that all who are concerned in the commission of the offense are principals.-English v. State, 35 Ala. 428; 1 McClain on Criminal Law, § 210.

In view of the evidence tending to show a connection of the defendant with illegal sales of liquor by Paul Davis, under propositions already stated, the court was justified in refusing to give each of the written charges requested in behalf of the defendant.

Affirmed.