134 So. 456 | Ala. Ct. App. | 1931
The indictment contained several counts, but this appellant was convicted by express terms of the jury's verdict under count 5 thereof. Count 5 charged a violation of section 3961 of the Code 1923, and said count substantially follows the wording of that section. In brief of the Attorney General, representing the state, this is conceded.
Section 3961 of the Code 1923 is a new section, and became operative, that is to say, in force and effect, with the adoption of the Code and the proclamation of the Governor on, to wit, August 17, 1924. Said section deals with embezzlement or conversion of public funds, and, under the provisions of section 4929 of the Code 1923, the statute of limitations in a case of this character is six years.
The indictment in this case was returned and filed in open court on April 9, 1928; therefore the time covered by the indictment related back to April 9, 1922.
As stated, the section of the Code in question is a new section, and the indictment preferred thereunder covers a period before said section was enacted, and also a period of time subsequent to its enactment. This being true, under the universal decisions of this court and the Supreme Court, it became necessary for the indictment to aver the time when the offense was committed, or that it was committed subsequent to (or since) the 17th day of August, 1924; time being a material ingredient of the offense, for, if the acts complained of had been committed prior to the 17th day of August, 1924, there could have been no conviction, under this section of the Code, the reason being that said section was not in existence. Miller v. State,
Reversed and remanded.
