Whitman v. State, 98 So. 695

Whitman v. State

98 So. 695 | Ala. Ct. App. | 1924

The appellant was indicated for a violation of the prohibition laws. The first count charged the possession of a still; the second count charged the manufacture of prohibited liquors. Demurrer was sustained to the first count and overruled to the second count.

The second count substantially conforms to the statute defining the offense. Acts 1919, p. 16, § 15.

"Words used in a statute to define an offense need not be strictly pursued in the indictment; it is sufficient to use other words conveying the same meaning." Section 7136, Code 1907.

It is not necessary to state the precise time at which the offense was committed; it may be alleged to have been committed before the finding of the indictment unless time is a material ingredient of the offense. Section 7139, Code 1907.

The act of the Legislature making the manufacture of prohibited liquors a felony was approved January 25, 1919, and section 21 of the act provides that it shall take effect from and after its passage and enactment into law. Acts 1919, pp. 16, 17, §§ 15 and 21.

The indictment was returned on April 7, 1922.

The time covered by an indictment for manufacturing prohibited liquors is three years, and as more than three years had elapsed since the passage of the act of 1919, supra, and before the finding of the indictment, time was no longer an ingredient of the offense, and it was sufficient to use the general averment, "before the finding of the indictment." Bruce v. State, ante, p. 368, 97 So. 373.

The demurrer to the second count of the indictment was properly overruled.

It is not necessary here to discuss the grounds of attack made by counsel for defendant upon the constitutionality of the act establishing the Haleyville division of the circuit court of Winston court (Local Acts 1919, p. 164), as both the Supreme Court and the Court of Appeals have ruled the law constitutional and valid. Plunkett v. State (Ala.App.)94 So. 258;¹ McCreless v. Tenn. Valley Bank, 208 Ala. 414,94 So. 722.

The following questions were propounded to state's witness Crumpton on cross-examination: "Where were you while the army was fighting?" "Were you court-martialed by the United States government?" Objection by the state was sustained to each of the questions. Each of the above questions sought to elicit evidence which was irrelevant and immaterial to any issue in the case, and the court did not err in sustaining the state's objection thereto.

The court sustained objection of the state to the question asked state's witness Crumpton on cross-examination, "You never have been court-martialed; you never have served a term in the penitentiary?" The question must be taken as a whole. The answer to the question, "You never have been court-martialed," was irrelevant and immaterial to any issue involved.

It is permissible to ask a witness if he ever served a term in the penitentiary. Fondren v. State, 204 Ala. 451, 86 So. 71; Moore v. State, 12 Ala. App. 243, 67 So. 789. But the combination of relevant and irrelevant matter in the same question renders the whole objectionable. But error, if any, in not permitting the latter part of the question, was cured by the subsequent question and answer, "Have you ever been convicted of a felony or a crime," and the answer, "No, sir."

The minute entry shows a judgment of conviction and sentence by the court, and was sufficient. Ex parte Hardeman v. State,202 Ala. 694, 81 So. 656; Wilkinson v. State, 106 Ala. 23,17 So. 458; Driggers v. State, 123 Ala. 46, 26 So. 512; Ex *528 parte Rodgers, 12 Ala. App. 218, 67 So. 710.

The court did not err in refusing the motion for a new trial.

There is no error in the record.

The judgment of the circuit court is affirmed.

Affirmed.

¹ Ante, p. 40.