47 So. 163 | Ala. | 1908
The appellant in this case was convicted of the offense of selling spirituous, vinous, or malt liquors contrary to law in Cullman county. It is admitted that the liquor was sold, and that the probate judge had issued a license to the defendant.
The first contention of the appellant is that the law was not complied with in the calling of the special term of the court at which he was tried. The statute requires 30 days’ notice of such special terms, etc., by advertisement in a newspaper, etc. Code 1896, § 915. It is admitted that the newspaper containing the notice was issued on January 4, 1908, and the court was called to meet on February 3, 1908. The record shows that the issue of the newspaper was dated January 3, and that it was in fact distributed through the mails on January 4, 1908, and the notice was kept up in consecutive issues of the paper, to wit, on the 3d, 10th, 17th, 24th, and 31st days of January, 1908. The rule of computation of time in this state is settled that the first day is excluded and the last day included (Code 1896, § 11), and it has been frequently held that the first day of the- court is included in the 20 days required for the service of process. — Garner v. Johnson, 22 Ala. 494;
The rule is established in this and other jurisdictions that, when a notice of so many days is required before a certain thing is to be done, the first day is excluded and the last included, so that if the act be done on the last day it is sufficient. Wade on Notice §§ 1070, 1071; 49 L. R. A. 244, 248, note. In addition, our statute provides that, when time is specified in days, 4 weeks notice is equal to 30 days. Code 1896, § 3043. The notice Avas sufficient for the calling of the special term of the court.
The error in the organization of the court in inserting January in place of February, AAdien taken in connection with the date of the order calling the court and the date given in making the order for summoning the venire, is self-correcting. Hence there was no error in correcting it nunc pro tunc.
The next insistence of appellant is that the court-erred in not sustaining the .motion to quash the venire of the petit jury on account of the manner of drawing the same. The facts set up and proved did not show any fraud in the drawing of said jurors. Hence there was no error in the action of the court. Code 1896, §
For similar reasons there was no error in the ruling of the court in regard to the organization of the grand jury. Code 1896, § 5269; Bluett v. State, 151 Ala. 41, 44 South 84, 88; Stoneking v. State, 118 Ala. 68, 71, 24 South. 47; Kitt v. State, 117 Ala. 213, 23 South. 485; Rogers v. State, 144 Ala. 32, 40 South. 572; Sanders v. State, 148 Ala. 606, 41 South 466. The case of Tucker v. State, 152 Ala. 1, 44 South. 587, does not militate against this proposition. While the first plea in abatement in this case does state, as in the case just cited, that the grand jury was not drawn in the presence of the officers designated by law, yet said first plea was not demurred to, but issue was taken on it, and the issue decided against the defendant; the facts not showing that the grand jury was not drawn in the presence of said officers.
There was no error in overruling the objection to the question to the witness Tucker, on cross-examination: “You say your object was to scatter the jury over the county ” nor in overruling the motion to exclude the answer thereto. — Linnehan v. State, 120 Ala. 293, 298, 25 South. 6; Hurst v. State, 133 Ala. 96, 98, 31 South. 933.
With regard to the validity of the general prohibition law of the state (Laws 1907, p. 71), and its effect in the counties where an election had been held, on the subject of intoxicating liquors, this court has recently, after careful consideration, sustained the validity of said general prohibition law, and has distinctly held that the provisions of section 13 of said act, providing that the said law should go into effect-on the 1st of January, 1908, in all counties in which an election shall
The appellant insists that said election was not held “under the provisions of the county local option law,” first, because the petition was not on one paper, but was on several papers, identical in wording, signed by different persons, making in the aggregate the number required. The statute does not require the petitioners all to sign one petition, but provides merely: “Upon the application of one-fourth of the qualified voters of any county in the state by petition in writing, signed by such qualified voters, addressed to the probate judges,” etc. If each voter should write his own petition and sign it, that would be “one-fourth of the qualified voters”
It is next insisted that the local option statute was not complied with, because said act provides that the “probate judge” shall order the election, and the record shows that the election in this case was ordered by the probate court. The petition is addressed to “Bobert I. Burke, Judge of the Probate Court,” etc., and the order reciting the petition is' headed, “State of Alabama, Cull man County, Probate Court,” and goes on to recite the filing of the petition, and then states: “It is therefore ordered, adjudged, and decreed by this court that the 9th day of December, 1907, * - * be set as the day for holding said election” — and is signed: Bobert I. Burke, Judge of Probate.” In a case where a local prohibition law provided that it should be the duty of the judge to order an election, and the objection was made that the order purported on its face to have been made by the court, this court said: “The mere recital in the order, ‘It is therefore considered by the court,’ is not conclusive. Conceding that the authority is conferred on the judge, that he may exercise it in term time or vacation,” and, although it was shown that it was done
The next insistence is that because the election was ordered on November 9, 1907, and the election held December 9, 1907, the statute was not complied with, which provides that “such election shall not be held within less than 30 days from the time it is ordered.” (Acts 1907, p. 200); the claim being that it was the intention of the statute that 30 entire days should elapse before the election should be held. If such had been the intention of the statute, it would have been very easy to so state it; but that was not done. It is simply not to be less than 30 days, so that if, according to the law, the time at Avhich the election was held could be said to
The next insistence is that the law was not complied with because the copy of the report of the election was not posted at the courthouse door as required by section 8 of the act (Acts 1907, p. 203). This is not made a condition precedent to the going into effect of the law; but, on the contrary, the act provides that, if a majority of the votes be against the sale, “then it shall not be lawful.” etc. (section 14). “A requirement to the effect that an act shall be published, * * * without any indication of the legislative purpose that its operation shall be postponed, or that its penalties should not be imposed, until after such publication, is directory, and noncompliance with it would not invalidate the enactment.” — Toole v. State, 88 Ala. 166, 7 South. 45. This objection is without force.
From what has been heretofore said, we think that the decision in the Skeggs Case makes not only the validity of the local option law immaterial, but also the strict compliance with its terms immaterial, if .enough appears
The license was immaterial, as it could not confer any authority to sell contrary to law.
The judgment of the court is affirmed.